The Sun.
London, England, 1841-11-10 00:00:00

THE SUN, LONDON, WEDNESDAY, NOVEMBER W, 1841.

nal representative of Mrs. Mackenzie, praying to have
transferred to him a sum of money to which -he was en-
titled as her representative, and which was withheld by
the defendant, on the ground that a bill had been filed
against him by other parties for recovery of the fund, and
that the suit was now pending.
Mr. KINDERSLEY having stated that the defendant did
not dispute the claim of th plaintiff, but merely desired
the directions of the Court, and indemnity from the suit
against him,
Lord LANGDALE directed the fund to be transferred to
the plaintiff, and said the direction of the Court would
be sufficient indemnity to the defendant against the
other suit.

THE LORD MAYOR.

In the course of the morning the Lord Mayor, at-
tended by his suite, appeared in Court, and invited the
Master of the Rolls to the banquet at Guildhall this even-
ing, which invitation was accepted by his Lordship.

with which the Court would have anything to do. The
plaintiff was an engraver, and the work done was the
engraving of a map of the island of St. Christopher. The •
work was executed in the years 1830 and 1831, and
about the same time the defendant paid Mr. Gardner 1051.
on account. It would appear that there had been
no dispute as to the quality of the work ; but
the cause of action having occurred ten years
ago, the only evidence which could take it out
of the statute of limitations, was a letter written by
the defendant to the plaintiff on the 28th of October,
1835. The letter stated that the defendant did not mean
that his creditors should lose what he owed them, and
that he would not only pay his debts, but interest upon
them, if he could. As the statute of limitations had
been mentioned, he (the defendant) was ready to put it
out of his own power to plead the statute. lie was un-
able to pay them, as, in the course of the year,
the West Indian subscribers to the map had
failed to pay their subscriptions. It was indis-
pensable, in tne first place, that the amount
of the balance due should be fixed, and then
he was ready to give his note. The letter then
referred to the estimate given in by the plaintiff, and
alleged that the charge for engraving the map had much
exceeded it. He hoped, under these circumstances, the
plaintiff would be prepared to say wlat deduction he
would make, and he would then be glad to give his
note for the amount if he could do so with justice to
his other creditors. That was the substance of the
letter and he (Mr. Cowling) submitted that it was not suf-
ficient to take the ease oUt-of the statute. A letter to do
that must contain a clear and unconditional promise to
pay what was due on a distinct acknowledgment, from
which a promise might be inferred. Although it was
not necessary that the amount should be stated, it was
clearly indispensable that the amount due should not be
disputed. The defendant had clearly made it a condi-
tion precedent of his promise to pay the debt that the
amount should be settled and some deduction from the
charge made. It was contended by the other side that
the letter was clearly an admission of money due, from
whence a promise to pay might be inferred.
Lord liEsmAN----You won't contend that an uncondi-
tional promise was necessary, if there was a complete
acknowledgment of the debt due?
Mr. COWLING—No, my Lord; but where the defen
dant disputes the amount, the letters cannot be taken as
an acknowledgment. The Learned Counsel having re-
ferred to the authorities on the subject,
The COURT took time to consider its decision.
MILWARD V. HEBBERT AND ANOTHER.

Mr. CRESWELL said this was an action upon a policy
of insurance effected by the defendants, Directors of the
Mutual Marine Insurance Company, upon the steam ves-
sel the Kilkenny, trading between London and Waterford.
The declaration set forth that in consideration of the
sum of 2261. paid by the plaintiff, the defendants did for
themselves and their partners, covenant and agree with
the plaintiff to make good all losses and damage that
might happen to the vessel, her hull, stores, machinery,
&c., which were thereby insured to the value of 20,0001.
an the cargo to the value of 3,6001. The decla-
ration then alleged the payment of the premium,
and that during the continuance of the policy and
while the defendants were still interested, the vessel took
on board, at Waterford, divers stores and goods, and
among the rest 1,000 pigs, to be conveyed to London.
That while the vessel was proceeding on the voyage, and
during the continuance of the risk, by reason of the vio-
lence of the winds and waves, it became necessary, in
order to preserve the vessel and cargo, to throw a part of
the cargo overboard, and the master accordingly did
throw the pigs overboard. There was this singularity in
the declaration, that no other cargo was shown to be
taken on board, and that in order to save the cargo
the pigs were thrown overboard. His Learned
Friend (Sir Wm. Follett), who was on the other side,
suggested that that might be accounted for by its being
an Irish voyage,—(A laugh). It was then alleged that
the owners of the vessel paid a contribution by way of
general average to the owners of the pigs. To that the
defendants pleaded that the pigs, up to the time of their
being thrown overboard, had been placed on the deck of
the vessel, by reason whereof the defendants were not
liable to pay for any loss. To that the plaintiffs re-
plied, that at the time the pigs were so laden and
plaCed on the deck of the.vessel, she was proceeding
on her voyage from Waterford to London, and
that there was a certain usage and custom in the
trade with regard to the placing of pigs upon the deck.
To that the defendants had demurred, and the special
cause of demurrer assigned that the defendants had no
notice of the custom therein stated, or that the vessel
would be employed in carrying pigs. Now this was an
action of the owner of the ship against the under-
writers to recover, under the policy, a contribution
by way of general average, for the loss sustained
by throwing the pigs overboard. It was laid down
in books of authority, that where a deck cargo
was carried, and the goods were subsequently
thrown overboard to lighten the ship, the owner of
the cargo was not entitled :to make contribution by
way of-general average. It was very reasonable that
' such a rule should be
.followed, because the principle on
which general average rested was that all the goods
on board. were in an equal and like danger. If the
danger was equal, then the contribution should be equal;
but that could not be where there was a deck loading,
because its natural tendency was to place all the rest in
greater danger, to impede the working of the ship and
render her top heavy. Again, danger to a deck cargo was
much greater than to a cargo stowed below, for it might
be washed overboard, and the perils of the sea were in-
creased thereby, and the danger and risk to the owner
was much more than those having goods under hatches.
He apprehended,- therefore, that the general rule of law
that contribution, by way of average, should not be
made in regard to goods loaded on deck. The Learned
C )unsel referred to the case of Da Costa v. Edwards, 4th
Campbell, which was an action upon a policy of in-
surance upon a voyage from London to Lisbon, to
recover the value of forty carboys of vitriol. The
carboys were lashed on deck, and a storm broke
one of them, and they taking fire, it was necessary, in
order to save the vessel and cargo, to throw them over-
board. Lord Ellenborough in that case left it to the
Jury to say whether it was usual to carry them on deck,
and whether they were properly stowed. Now, the
Learned Judge in that case adopted the law that the
underwriters, but for the usage, would not be liable for the
goods ; and how Much less could the rule apply to the
case of the underwriters on the ship, who had no notice
of the trade the vessel would be engaged in. In the
present case it was not alleged that the underwriters had
had any notice, but he submitted that the plaintiffs
were bound to have done so.

- - Mr. Justice COLERIDGE-If it were an action upon a
policy to recover the value of goods how would it be ?
Mr. CRESWELL-If the party insured goods for the
voyage, whatever extraordinary habit prevailed as to
these goods, he must be supposed to know it ; but when
the party effected a policy on the ship there was nothing
to draw his attention to any extraordinary usage
or purpose to which the vessel might be applied.
The contract in the present case was evidently
a contract between the owner of the ship and the
owner of the goods, and could not affect the under;
writers on the ship. On these grounds he submitted
that the replication was bad for not averring a notice of
the custom, and the more especially as this was a time
policy. He contended that in all these cases there must
be a notice expressed or implied, but the somehow or
other notice wss an essentialingredient, and must appear
on the record, and for these reasons it appeared to him
that the plea was good, that the replication did not
answer it, and that the judgment of the Court must be
for the defendants.

The SOLICITOR-GENERAL for the plaintiffs submitted
that the terms of the policy being to insure the ship from
all losses at all times and in all services, the defendants
could not now set up the plea that they had no notice of
the nature of the trade the vessel was to be employed in.
The question was, whether the goods had been stowed
in the manner usually recognized in that particular
trade, and if that were the case there could be no pre-
tence for refusing or denying their liability. He might
state here that an action had been brought by the owner
of goods against the shipowners in the Irish Court
of Exchequer, and the very same question had
been raised there, namely, whether, from the circum-
stance of the goods being loaded upon the deck, the
owner was entitled to compensation. The Chancellor of
Exchequer in Ireland had held that the goods being
carried according to the usual custom, the owner was en-
titled. Now such was the view of the case which he was
submitting to the Court, and with regard to notice, it was
held by the general insurance law of "England that that
notice of the usage of trade was not necessary. Where
the underwriters undertook the extended risk of insuring
in all trades, they obtained a corresponding premium,
and could not then plead want of notice. The defendant's
plea did not set out that the goods by being placed on
deck impeded the navigation of the vessel, or increased
the risk, and therefore it was manifestly insufficient.
Had they alleged that the risk had been thereby in-
creased, that might have called upon the plaintiff to
show why the goods had been ,so loaded. Every
underwriter was assumed to be acquainted with the
practice of the trade in which he insured, and if a
different rule was to be applied to time policies they
would be nothing more than a dead letter. On these
grounds he submitted that the judgment of the Court
must be for the plaintiff.
Mr. CRESWELL having replied,
The COURT took time to consider its judgment.

EXCHEQUER COURT, Nov. 9.
THOMAS V. BIRD AND ANOTHER.
This was an action for false imprisonment, which
was tried before Lord Denman at the late assizes for
Kent, when a verdict was found for the defendant.
Mr. PLATT now moved for a rule to show cause why
that verdict should me be set aside, and a new
trial had, on the grounds of its being against
the evidence, and the improper reception of
evidence by the Learned Judge. The plaintiff had lived
for many years with Mr. Bird, a farmer, as housekeeper.
He was not on good terms with his family, but he had
been an indulgent master to the plaintiff, who had en-
tered his service when young, and had got comparatively
old in it. He was not only kind to her, but also treated
any friend of her's who called to see her with great
urbanity. On May
23d of the present year, the brother of
the plaintiff and a young man named Penn called upon
her and stopped the day, eating and drin.king at the
same table with the deceased. At tea time the deceased
'William Bird turned to the plaintiff and said,
" Ann go up stairs and fetch that parcel I told
you of in my room." She did so. He added,
"Now bring the mosey
I gave you before." She
brought a bag containing 49 sovereigns. He then
opened the parcel and it contained near 500/.,
he took it all and said, " Now take it up,
place it in the box, and, turning to the brother
and his friend, said, " You are witnesses that I have
given it to her ; take it home, and let her mother take
care of it for her." The old man desired the brother to
come over again on the Tuesday and look what the farm
servants were doing. He did so, and although Mr.
Bird was not able to go. out himself, he desired him
to go to certain fields -And- report - to him

how they were cultivated. While he was there
a butcher sent in a check for 151. 175., and Bird
said " here, Ann, roti may as well take this as part of
the 221. I owe you for paying the men." On the Thurs-
day he was found dead in his chair, and immediate notice
was given to the members of his family. The defendants,
deceased's brothers,arrived in a short time; they demanded
the key:, from the plaintiff. They ransacked the house,
and were much disappointed at finding no property.
They prevented the plaintiff from leaving the house—
they charged her with robbing the deceased, and asked
where all the property was. She answered that she knew
of no property, but that which he bad given her, and at
once gave an inventory of the whole of it, and told
them where it was. They were very angry, and told her
she had done enough to get herself transported. They
imprisoned her till next day, when they took her over to
Maidstone to an attorney, who was• connected with the
family, where, by . threats and intimidation, they
induced her to give up the whole of the pro-
perty, including even the check for 181. 175., her
own property. They again -took her home, and
confined her for two clays more ; they refused to pay
her wages, and by intimidation and threats attempted to
induce her to sign a paper, acknowledging that
she had voluntarily given up the property, and
that she would not give them any trouble about the
matter, but this she refused to do, and was turned out of
doors. Still, although these facts were abundantly
proved, the Jury had found that there had been no im-
prisonment. For the defendants there was actually no
defence, because the whole of the witnesses had
a direct interest in the distribution of the property
of the deceased. In order to obviate his objection, a re-
lease was executed to two of them, but as their interests
were separate, the i elease ought to have two stamps—
whereas it had only one ; it was therefore invalid.
The COURT—Take a rule upon the latter ground.
JEWISON V. DYSON.

Mr. WORTLEY, in moving for a new trial in this case,
said the rights of the Crown were involved—he might
say the rights of the Illustrious Person whom they were
informed had so lately come among them (the birth of
a Prince had just been announced). It was an action to
try in whom the right to appoint the Coroner for the
Honour of Pomfret, which comprised the greater part of
the West Riding of Yorkshire, vested. The Crown
c'aimed to appoint upon a charter granted in the 23d
Edward 111., to the then Duke of Lancaster, which claim
was resisted by the Magistrates on the part of the free-
holders. It was tried at the late York Assizes before
Lord Denman, when a verdict was found for the plain-
tiff. At the trial the plaintiff had not shown any ap-
pointment till the 4th of Elizabeth, and the person then
appointed never acted as Coroner. The defendant
showed that in that year an inquest was held by the
Coroner for the county. There was nothing shown
until the period between 1756 and 1796, when it ap-
peared some payments were made by the Magistrates for
inquests held by the Duchy Coroner. They did prove
many inquests held by him after, but the defendant
showed that the County Coroner held inquests, and
many more in fact than the Duchy Coroner, at the
same period, thereby proving at all events a concurrent
jurisdiction. He complained that the whole of the
questions raised upon the record had not been left to
the Jury.
The COURT took time to consider the case, and wished
to see the charter in the Latin.