The Sun.
London, England, 1858-08-25 00:00:00

K ROG T. FRANKLIN.

Mr. Collier and Mr. Karslake were counsel for the plain-
tiff, and Mr. Coleridge and Mr. King-don for the defendant.
The dee:nation charged the defendant with having as-
saulted the plaintiff, and put him in irons, and imprisoned
him.

The defendant pleaded not guilty, and that he was cap-
tain or a vcss Id called the lirdaunted, on the high seas, and
while in command of the ship certain of the passengers re-
sisted the orders of the defendant, denied his authority, and
used menacing and insulting language, which tended to dis-
obedience and mutiny, and that the plaintiff was ene of
those passengers, and therefore he imprisoned him, having
reasonable and probable cause to suppose that a mutiny
would ensue.

The plaintiff denied this, and alleged excess.
Mr. Collier, in opening the case, said that the plaintiff
was Mr. Ignatius Krog, a member of a family living at the
Cape of Good Hope, his father being a member of the As-
sembly. The plaintiff himself was a member of the Scotch
bar, and he complained of an outrage which it was almost
impossible to conceive. The vessel called the Undaunted
was chartered from Melbourne to London, to call at Calcutta
and the Cape. At Calcutta about 200 wounded soldiers
were taken on board as passengers, as well as many officers,
who had been engaged in the fearful struggle in India, and
were coming home. Among the passengers were a number
of ladies---one had survived all the horrors of Lucknow. She
had lost her husband and all her children but one, and that
one she was bringing home. These officers were as
courteous as they were brave. Unfortunately, some
misunderstanding and a degree of coolness arose be-
tween Captain Franklin and the passengers before they
arrived at the Cape, and the captain upon one occasion had
called one of the ladies a d— b—. The officers were a
good deal annoyed at this, and treated the captain with a
degree of coolness which was extremely natural. He seemed
to be very irritable, having a notion of " I am as good as
you. He made himself extremely offensive. He had on
one occasion told an officer that he only wished to go ashore
because he was afraid, and that he had not much courage
under his red coat, and he threatened to pull their noses.
The officers bore all this as gentlemen, there being
strict orders at the Horse Guards that they should not
engage in duels. He could well understand that men
who cared not to risk their lives against an enemy would
not like to engage with a turbulent sea captain. The plain-
tiff embarked at the Cape on the 16th of May. Nothing
took place for some time, but on the sth of June, when Mr.
Krog was pacing the poop, he heard a noise below and found
there was an altercation about putting out the lamps in the
saloon at 8 at night, this having been done by the captain's
order for vexation and annoyance. Mr. Krog, not knowing
what the noise was about, asked what the row was. The
captain called out, " Who the devil are you ?" Mr. Krog
said, " My name is Mr. Krog." The captain repeated the
name several times in a most insulting manner. Now,
perhaps few things annoyed a man more than misspelling or
mispronouncing his name. Mr. Krog said, " My status in
society is as good as yours." The captain then began
making a noise. Mr. Krog said, " Capt. Franklin, no
doubt you are captain of the ship and the crew, and so far as
the crew are concerned, they are bound to submit to your
. who
bare a right to the use anTeppayill6,6l- Mw sobv,p,
arc la, thA landlord of a floatinz hotel." Captain Franklin
became furious, and said, I wilt put you in irons." I,lr.
Krog did not believe he wse soeioua, and said You dare not
do that." Captain Franklin's law, however, was like that
1 of the Medes ; he knew he was doing wrong, and then he
I thought he would get up a scene to enter on his log. He
went to his cabin bud put a revolver in his pocket, and then
he rushed into the saloon, and said, " You passengers have
been endeavouring to take possession of the vessel for 24
hours, but you shell only do this over my body, and here is
my revolver," and he drew himself up like a captain on the
stage. He piped up his crew as if there had been the ele-
ments of a mutiny. The captain then retired to his den, but
Mr. Krog was placed in irons; he thought he had done
enough to justify him. Mr. Krog was quietly pacing the
deck when he was taken below, a chain was brought and
one end was fastened to the threshold of the cabin door and
the other end locked round Mr. Krog's leg. The cabin was
six feet by seven feet, and there were three other passengers
in it, and the ship was then in the tropics, with the ther-
mometer at 100 degrees. The key of the cabin-door
could not be found, or it would have been locked. After
this Captain Franklin went into the saloon and said to
Lieutenant Armstrong, " Little Armstrong, I will wring
your nose, hut you are the cause of this." He also threat-
ened to pull the noses of other officers. Captain Franklin
sent different rneesegcs to Mr. Krog, offering to release
him if he would make an apology. He also said he might
take exercise on the etiarter-deck, but not on the poop,
where the other passengers walked. Mr. Krog was kept in
irons in this manner for ten days, when Dr. Macbeth inter-
fered, and said Mr. Krog's health would suffer if lie was
longer detained. Captain Franklin then removed the irons.
Mr. Krog's health bad suffered in consequence of this. The
learned counsel then called upon the jury to give serious
damages for such conduct.
Mr. Krog proved nearly al these facts..
Cross-examined—There were about 30 other first-class
passengers. I do not know the number of general passen-
gers on beard. I have been told that the officers did not
belong to the trcops that were on board. I got on hoard at
the Cape on the 15•11 of May. There was then no coolness
between Crptaiti Franklin and me. He used to dine with
us. I sat just behind the mast. There was a little gap in
the tablecloth there ; a towel used to be put to fill it up. I in-
sisted
I uponsall k using
it awny.
it
as'aT I was toldkin'anilefis once.gesa T id
, "hle officers
If you
that
were playing at whist when the lamp was removed by the
steward lower down the table. The subject of the discussion
I think there were three
p about five weeks ago
tw lamps
ast
a in thek
measurements.rteh ma tosvaallooonf.tlhe"lslataLtlplet.ahre
dthi Lieut. Armstrong tiny,
" Why do you do this? Ilave you orders to remove the
lamp The steward said he had, and he either removed it or
extinguished it. Lieut. Armstrong said the steward had
insulted him grossly, and I said, Tuey have no right to
remove the lamp." I have come from the Cape before.
I had a difference with that Captain I had dared him to
of the passengers of this. at
ajer Longden was on the
(-Mptain Franklin and some
put me in irons, and I told
-down the cabin and heard
the noise after I had spoken to Captain Franklin.
poop at the time. I looked
Colonel Horn called cn all those bearing her Majesty's
commission not to interfere. Captain Hunt did not say,
„Turn the men out and let's see who are the strongest." I
did not see soldiers crowding round the cabin. I saw Las-
cars, a crowd of them. I did not hear Colonel Horn say,
" Men, I am sure you will oh-y
arid go below. The
crew was chiefly composed of Lasears. Mr. Smythe said, if
I did not stay in my cabin I must be made to stay. The cap-
tain called up the skylight two or three times that he would
put me in irons. I was told to way in my cabin and I re-
fused, and opened tie door and sat outside. Wilien I was
taken down stairs there was no altercation going on. The
captain's wife went into hysterics. Mrs. Lomax was en
board. I never heard of her fainting till this moment. Mr.
George Thompson, M.P., was on board; he is now very ill.
He made some speech which I could not hear. I had re-
peated applications to make an apology. I wished to have
it brought to roe in writing, which was declined. It was
not true that on the 6th of June Captain Franklin sent his
mate to me to demand a written apology. I sat at the door
of the saloon to take my dinner. The chain made a great
noise every time I moved. It happened while the others
were at dinner. I would not take exercise on the quarter-
deck, because Lascars and soldiers were there. I have seen
them scores of times walking on the quarter-deck.
Re-examined—Mr. Thompson was making a speech be-
fore I was chained. (It was conceded that Mr.
i Thompson
was too ill to attend.) Lieutenant Armstrong s too ill to
come here.
C. W. Wood—l was a passenger from Calcutta. We left
on the 18th of March. There were several officers and ladies
on board as passengers. I remember Mr. Krog coming on
board. There was nothing mutinous in the conduct of the
passengers. The Lascar crew struck work when we were
at the Cape. They went to work again next morning.
There was not any violence. There was nothing mutinous
on the part of the soldiers. There was nothing mutinous
when Mr. Krog came en hoard. There was no insubordina-
tion among the passengers. On the evening of the sth of
June I heard a row in the saloon. The words were, " I
shall," and " You shan't." Captain Franklin ran down.
I went to the main skylight. Captain Franklin said the
light should not be removed from its proper place. The
steward said after he had removed the light one of the
passengers had brought it back. Captain Hun' asked in a
civil way by whose orders the light was removed. The
steward said he had received orders. Captain Hint brought
the light back to its proper place, and then it was ex-
tinguished. Captain Franklin went into the salsoa and said
it was his orders. Mr. Krog came up to me and asked what
it was all about. Captain Franklin 'said, " Who the devil
are you ?" Mr. Krog said, "I am Krog, and esy position
in life is far better than yours." Captain Franklin said,
" it, I'll show you that I shall put the lights out at 8
o'clock." Mr. Krog said, " You dare not do that ; yen
have nothing to do with the passengers ; yotr ship is a
floating hotel, and you are the landlord of it.' Captain
Franklin afterwards said, " You have been trying to take
the ship from tee, but you shan't while this bolt' exists."
He then said, " I've power to put Mr. Krog is irons for
using mutinous language, and I'll do it." He thin ordered
all bands to he piped on deck. Smythe did so, and he told
Smythe to bring Mr. Krog down from the poop. Mr. Krog
was silent on the poop. I followed. Mr. Kies; merely
said, " No, I will not go down." Captain Frantlin then
sent Smythe for the boatswain and the carpenter and Mr.
Krog came down, and when he got down, he said

"Gentlemen, be witness to what has happened this even-
ing." Mr. Krog went into his cabin and came out, and
Captain Franklin ordered the carpenter to put him in
iro.3s, and this being done all bands were piped
down. Captain Franklin retired to his cabin, and
brought a revolver out, and said, " You, young
Armstrong, have been the cause of all this row ; I shall
wring your nose as soon as we get to Gravesend." Arm-
strong called on those present to take a note of what oc-
curred. All were quiet at that time. The captain
turned to Capt. Hunt, and said, " As for you, I shall wring
your nose in some other way." Capt. Hunt said that two
could play at that, and he ordered Capt. Franklin to keep
from him. No one had ever attempted to take the ship
from the captain; there was no such disposition.
Cross-examined—l think we had dined at four that day.
There had not been a late sitting—we had gene on the poop
to smoke. There were no soldiers at the door. Major Long-
den told the officers who were on the quarter-deck to go
down. I did not hear Capt. Hunt say, "Turn out all the
hands and we shall see who'll have the best of it." It was
after the affair was over that Capt. Franklin came with the
revolver. Mrs. Franklin was crying in the cabin. Mr.
Landsberg was there. He and Mr. Thompson said some-
thing. I don't know that they interfered on the side of the
captain.
Re examined—No one resisted the captain. All hands
came when they were piped up.
Capt. Green, of the 82d Regiment—l was a passenger.
I bad a dispute with Capt. Franklin, and we did not speak
afterwards. On the sth of June I was on the poop cif
My attention was attracted by a noise. The steward had
removed the light from a whist party who were playing
quietly. I heard Capt. Franklin say in a loud voice, " I
shall put out the lights at eight o'clock." Mr. Krog said,
" You cannot do that ; you are captain of your crew and
ship, but so far as your passengers are concerned you are
only the landlord of a floating hotel." I saw Krog go
quietly away with the carpenter and the others. I did not
go down to the saloon for some time. When I went down
all was quiet
Cross-examined—l heard Colonel Horn desire that no
officer sheuld interfere. I saw no soldiers aft the mainmast,
which is a considerable distance from the saloon. The
chief of the crew were Lascars. All bands came up when
they were piped. Did not know whether there were many
wine glasses broken that day.
By the Judge—The plaintiff did net excite the soldiers
to mutiny, or speak to them.
Mr. Blenman—l am in the Bengal Civil Service, and
was wounded at Lucknow. When the plaintiff said his
name was Krog the Captain repeated it in a sneering way
several times. There was no pretence for saying there was
a combination to take the ship from the captain. The whist
party went on in a quiet manner. Captain Franklin was
the only noisy person.
John Calvin Hunt—l am a captain in the army. I was
one of the whist party tt at evening. Lieutenant Arm-
strong wished to move the light a little further up. The
steward prevented him. I pushed it, and the steward
blew it out. I told him be had no right to do that; he
should have gone to the chief officer. Captain Franklin
came in and thumped the table with his fist, and said we
should have no lights at all if we did not mind. I heard the
plaintiff's voice asking what was the noise. One of the
party said they were putting out the lights. The plaintiff
said they dare not do that. The captain said " Who the
devil are you ?" The plaintiff told him, Krog, upon which
the captain repeated the name several times in a jeering
manner. The captain threatened to put him in irons. The
plaintiff said he dare not do that; and Smythe, the first
officer, said" Might is right." The crew were piped up, and
the plaintiff ordered to be put in irons. The captain said
there bad been a combination to take the ship. There was
not the least pretence for saying there was any intention
to mutiny. The plaintiff was afterwards put in irons.
When the captain went out of the cabin he saw us taking
notes, and he struck his breast several times and said, "I've
more money than you."
Cross-examined—l had the captain bound over on our
arrival at Plymouth.
Mr. Menzies—l am an undergraduate of Utrecht Univer-
sity. I was on board.
The learned Baron said there were 200 soldiers, 60 crew,
and 30 passengers, and be supposed all were to be called,
and it would be ever by the Ist of October. They had beard
the same facts proved over and over again. Sometimes
counsel had confidence in their cases.
Major Longden—l was in command of the soldiers on
board. There was not the slightest mutiny.
Cross-examined—There was a disturbance among the
Lascars ; two or three of our men were quarrelling at the
Cape, and Captain Franklin interfered in the most unneces-
sary manner. He asked the if a passenger attempted to
take the ship whether I would render him assistance. I
told him every assistance I possibly could. If I had beard
of any combination I should have supported the captain
through thick and thin.
This was the plaintiff's case.
The case was proceeding when our report left.

NORTHERN CIRCUIT.—LIVERPOOL, AUG. 24.
(Before Mr. Baron. Martin and a Special Jury.)
WILSON Y. THE MANCHESTER, SHEFFIELD, AND
LINCOLNSHIRE RAILWAY COMPANY.

Mr. noggins, Q.C., Mr. James Wilde, Q.C., Mr. Ovens,
and Mr. T. Jones, appeared for the plaintiff; Mr. Atherton,
Q.C., Mr. Monk, Q.C., and Mr. Milward, for the defendants.
This heavy case, which commenced on Saturday after-
noon, and continued throughout the whole of yesterday,
was brought to a conclusion to-day. The damages were
laid at £?5, and the facts are as follows :
The plaintiff, Benjamin Wilson, is a shopkeeper, residing
near the Hollingwood Branch Canal, between Failsworth
and Ashton, and he sought to recover D 25 for damage done
to his house, garden, and stock by the water overflowing
from the canal of which the defendants were the proprietors,
through the negligence and misconduct, as it was alleged,
of the defendants or their servants. It appeared that on the
evening of the 14th of August, 1857, a great rain storm carne
on, and in consequence of the alleged neglected state of the
Hollingwood reservoir, which was connected with the canal,
the water overflowed its embankments, and ultimately
found its way into the canal. It was also alleged that the
, defendants bad caused the original self-acting weirs on the
1 Iv II f• .1 tAx rfik.ri n
q u ire d
some
one opt LtNtrictie.d into
.floo_dmes, wpichre-
, before these floodgates were opened, the water in the canal
ran over its embankments and caused considerable damage.
A great body of water found its way into the river Medlock,
on the banks of which were numerous manufactories, and
carried away weirs, bridges, everything, the river having
risen three feet in a quarter of an hour. The plaintiff ad-
mitted, in cross-examination by Mr. Atherton, that he had
some wealthy people at his back in bringing this action,
who had also sustained damage.
A great number of witnesses hasing been called by the
plaintiff,
Mr. Atherton, Q.C., addressed the jury for the defendants,
and said that this inquiry, though apparently involving only
a small sum, was of very great importance to the railway
company to whom the canal belonged. He would submit
to the jury two questions—firstly, was tha overflowing of
the water referred to attributable to the negligence of tae
defendants, and, secondly, was the injury of which the
plaintiff complained to be exclusively attributed to the
negligence of the defendants? He would show that on the
night in question there was a most extraordinary downfall
of rain, and it would be told the jury by his lordship that,
provided ordinary and reasonable means were resorted to by
the defendants for the purpose of avoiding any infliction of
injury to the neighbours, they were not responsible for that
which must be looked upon as a mere accident, or, as it was
usually called, " the act of God." With regard to the over-
flowing of the water at the Hollingwood reservoir, it arose
from the walls having shortly before subsided, in conse-
quence of the ground underneath having been worked for
coal. The learned counsel urged that when last inspected
in spring, the reservoir and walls were in good condition.
He also proceeded to argue that the overflow of water from
the reservoir could not have contributed to the damage of
which the plaintiff complained, as the times named did:not
at all correspond. The learned counsel concluded by review-
ing the evieence which had been adduced, to show that the
plaintiff had no real cause of action against the defendants.
A vast body of evidence st as then tendered upon behalf of
the defendants, and this morning, Mr. Atherton, in sum-
ming up the evidence, made an earnest appeal to the jury,
urging that neither the railway company nor canal company
were bound to construct their works to endure hr sr perpetuity,
and insisted that the evidence given pointed only to this—
that the plaintiff, on the night in question, like thousands of
persons in the north of England, was subjected to incon-
venience by flood, but he had not made out that anything
that had happened was caused by the fault or negligence of
the company.
Mr. noggins, in replying upon the whole case, dwelt
upon the necessity of attending to the different stages of
the flooding on the plaintiff's prem'ses. The defendants on
many former occasions had compensated the plaintifffor in-
juries of this description arising from the overflow of the
canal or reservoirs. They were stopped, therefore, from say-
ing that nothing was due on this occasion. The company
had raised the weir at Bardsley some six or seven feet. It
was formerly, in the memory of the plaintiff, self-acting.
The company appointed persons to look after the new weir,
which would not operate to let off the water, except it were
raised by human aid. Those persons were proved to have
been utterly negligent. The company were responsible for
that negligence, and the plaintiff, who had been injured in
consequence, had a title to compensation in damages. They
must indemnify him for not doing what they ought to have
done in a proper way at the right moment.
Mr. Baron Martin then summed up at some length, ,
telling the jury they could not find for the plaintiff unless
they believed that the injury proved by the plaintiff arose
entirely from the negligence of the company in not keeping
the banks of the canal as they ought to have done. The cul-
vert had been alleged as a gr.,und of disentitling the plaintiff
to damages, because the culvert, having been constructed by
the company at the desire of the plaintiff, was insufficient to
carry off the water, but he could not see how this affected
the case ;it was, however, a question for the jury. The first
question was, was the canal sufficient and fit for its pur-
pose? If it was, the defendants were not responsible for the
consequences of an extraordinary flood. Then the second
question was as to the reservoir; it was for the jury to
say whether it was in a proper state, and whether it
was not an act of negligence of the defendants
to leave it as it was on the 14th of August. They had also
to consider whether the injury suffered by the plaintiff arose
from that cause wholly. The reservoir having continued
sufficient for so long, the presumption seemed to be that it
had only given way under the pressure of the overwhelm-
ing flood—that which, in fact, the law of England described
as the act of God.

The jury, after consulting for nearly three hours, re-
turned into court, giving the following verdict :
" That the defendants had been guilty of negligence in
the way in which they bad kept the reservoir, but that the
damage which the plaintiff had sustained was not in any
way attributable thereto."
Upon this the learned judge directed a verdict to be en-
tered for the defendants.
This verdict governed two other causes which arose out
of the same matter.