The Sun.
London, England, 1821-11-28 00:00:00

LAW INTELLIGENCE

COURT OF COMUON PLEAS, N0v.27,

GOSS V. WATLINGTON. • •
Sergeant PE LL having, on a former day in this Term,'
obtained a rule to slew cause why the verdict which had been
given for. the plaintiff in this case should not be set aside, and a
new trial granted, on the ground that the receipts of a man
named Waits had been improperly admitted as evidence against
the 'defendant at the trial;
Lord Chief Justice DALLAS subsequently. read his report
of the case, which he stated to be an action brought by the plain-
tiff as Deputy of the Ward of Qucenhithe, against the de-
fendant, as surety on a bond conditioned for the due performance,
by Watts, of all the duties of tax-collector of that Ward. The
bond was given on the W. of May, DM, and the condition was
to be void " if-Watts should well and trtfly receive and pay to
the-Deputy of the said ward, the watch-rate and taxes, deduct-
ing only his poundage for the same." Watts had sinec died, and
being considerably in arrear, the Deputy had commenced the
present action for the purpose of recovering the amount of the
defendant's obligation. At the trial of the cause, the.plaintiff,
in order to prove the deindarit's liability, had offered in evi
deuce some books kept by Watts, in which the names of t."-ie
rated inhabitants were entered, together with the sum due from
each, and when any inhabitant had paid his rate Watts put a
cross against his name to signify that he had received the same.
Mr. Serjeant Pell objected against this evidence—first, that it
was not the best evidence that could.have been produced. - 2dly.
That the declarations of the principal could net be received
against his surety, as such declarations would exonerate him-
self by rendering his surety liable. 3clly. That it the'piiacipal
could not, while alive, be evidence against his surety, so neither
could his receipts, when dead, be used for that purpose. His
Lordship, however, received the boas as evidence, but wishing
to have the opinion of the Court on these points. permitted the
plaintiff to take a verdict, reserving to the defendant the liberty
of moving to set aside this verdict, and have a new trial, if the
Court should be of opinion that such evidence was improperly

admitted.
Mr. SerjeantVauosissas now sliewed cause against the Rule,
and after stating the nature of the action and the .point to be
decided, contended that these receipts and entries were admis-
sible;in evidence against the surety after the death of the prin-
cipal. Such entries were clearly sufficient to have charged Watts's
executor; but it was said that the surety being a third person,
not a party privy to the entries, was not to be made liable by
them. But the surety.here must he considered as standing in a
degree of priority different from ordinary casts. The admission
of one obligor to a joint and several bond would certainly be
sufficiera to bind his co-obligor. If Watts had been alive, he
might have been called to prove the receipt of these taxes, and
that certainly would have been primary evidence, but as he was
dead, the Court must resort to the other rule, and receive the
best secondary evidence of which the nature of the case would
admit.
Mr. Serj. PEAKE followed on the same side, and submitted
that these entries must be received in evidence, as they formed
part of the running accounts of a person liable to make such ac-
counts to the defendant.
Mr. Serjeant PEr.I., in support of the rule, said that he
should argue the case now as he had done at the trial, on prin-
ciple, feeling confident that it must ultimately be decided on
principle alone. ,The principle he should contend for was. that
the declarations.of one obligor could not be received in evidence
against his co-obligor, whether the party who made the declara-
tions were at the time of the trial alive or dead.
Lord Chief Justice DALLAS, after consulting with the other
Judges, said, although by the industry and zeal of my Brothers
on each side, the books have been, I may say, ransacked for
authorities on this occasion, yet not one case was to be found
like the present.—(Here his Lordship stated the facts.)—All
those which have been decided appear to have been cases on
private security ; but this is a case of a public surety, who re-
cognises by his bond the -particular duty of his principal. We
intend suspending our judgment until we are put in possession
of the books in which these entries were made. « e wish to
know whether they are the same books mentioned in the bond,
where it is said that certain books were to be entrisetod to
Watts, charging it as part of his duty to deliver them up, pro-
perly authenticated, to the deputy, This case must, therefore,
stand over for the present.
On this day Lord Chief Justice DALLAS delivered thc judg-
ment of the Court. This case has been very ably and extensively
argued at the Bar ; but, notwithstanding, it appears to us, that a
great deal of what has been said has no direct application to the
present question. Our judgment will be founded on reasons which
he in a very narrow compass ' • generally, we should say, that
whatever a man may admit, shall be taken, against himself, both
in civil and criminal cases ; but it would be laglily inconvenient
in a variety of instances, if his admissions were to be considered
conclusive against third persons. The question for the determi-
nation of the Court in this case is, whether these entries in the
books of the principal shall be admitted in evidence, so as to
charge his surety ? We must, to decide this question, examine into
the circumstances of the case. The condition of the bond was,
that Watts should well and truly receive and pay the Taxes. of
this Ward, and the books which lie kept by virtue of his office,
were always to be open to the inspection of the plaintiff, when-
ever lie should wish to examine thems They must, therefore,
be considered as public books, for they were to be kept for a par-
ticular purpose, and were to be delivered up to Watts's succes-
sors in office. Considering them, therefore, as public books, the
Court are of opinion, that they must be reedited in evidcnca
against the defendant, for they would be admitted as such against
the principal himself, for the duiperformance of whose particular
duties the defendant is bound. There has been another point
mentioned to the Court, namely, that the receipts of the princi-
pal, and the persons to whom those receipts were given, might
have been produced against the defendant, and this, it had been
said, would have been the best evidence. On this point the
case does not appear so clearly supported by the authorities.—
The receipts of an agent have been held to be admissible against
the principal only under peculiar circumstances. In Biggs v.
Laurence, Mr. Justice Buller held, that the receipts of an agent
would be conclusive against the principal; but Lord Kenyon
subsequently dissented from that opinion. The Court, there-
fore, think, that the receipts of an agent will or will not bind
the principal, according to the particular circumstances of each
case. In the. present enough does not appear to make these
receipts evidence against the surety. The verdict must, there-
fore, stand for the amount due to the plaintiff. as Deputy, on
the entries in the books kept by Watts, as Collector.
FORSHAW V. CHAU RERT.
This was an action on a policy of insurance from Cuba to
Liverpool. After the policy had been subscribed, all the under-
writers, except the defendant, put their initials to the following
alteration, " with liberty to call off Jamaica." It was proved
on the trial, that four of the men had deserted before the vessel
quitted Cuba, and the Captain, thinking he should •be blamed
by the different parties. in England if he sailed with only ten
men, although he thought them fully sufficient for the voyage,
quitted Cuba for Montego Bay, and took in men to make up his
full complement. .The vessel was subsequently• lost. The
defendant objected first, ,that the alteration had vacated the
policy, and secondly, that the Captain was bound to have had a
sufficient crew on board when lie first sailed on his voyage, and
therefore, that the policy had been vacated by his sailing to
Jamaica with only ten men on board. At the trial of the cause,
the Jury had given a verdict for the plaintiff, which
Mr. Serjeant Tanny had moved to set aside, on the above
objections.
Mr. Serjeant II u renocic now sliewed cause against the rule,
and contended, that as every thing had been done for the be-
nefit of all concerned, and as no improper conduct was charged
on the Captain, the plaintiff was entitled to recover.
The Co uRT however thought, that the ship should have had
a sufficient crew at the time of her sailing, and therefore, though
they believed the objections to be against the justice of the case,
I they made the rule absolute for a new trial.
READ V. DONHAM.•
This was an action on a policy of insurance for 8,0001. effected
on the ship Vittoria, at and from London to Calcutta and back,
dated the 15th of August, 1819. On the I lth June, 1820, she
arrived at Calcutta, and after- having taken in her homeward
cargo, prepared to return to England. While coming down the
River she ran against a brig, which she damaged considerably,
and by the saute accident kst part of her own rigging, and in-
jured her deck. She was, however, fully repaired at Calcutta,
and subsequently sailed from that port, butencountered a hurri-
cane, which obliged her to put back; and while in the act of re-
., turning. to that piece suffered so considerably front this continu-
ance of the tempestuous weather, that it was thought advisable
to have her surveyed, which was accordingly done. The per-
son who surveyed her reported that she intest be unladen, and
that she was so considerably damaged, as to require repairs,
which, together with all other incidental expences, it was cal-
culated would amount to above 4,0001. The Captain found
considerable difficulty in attempting to raise money by the hypo-
thecating the vessel, and it appeared that only one house at
Calcutta would advance the necessary sum ; and even they
refused to do so, except the bills of lading and the policy of
Insurance were indorsed over to them or their agents in Eng-
land : with this condition the Captain could. not comply, as
the policy was in London at the time. Under these circum-
stances lie offered to abandon the vessel to the Agent of
Lloyd's, residing at Calcutta, who refused to accept the
abandonment, on the ground iat he did not possess any au-
thority on that subject. The Captain then had another survey
made by the person who was employed by the under wsi ers
at Lloyd's, and two masters of vessels at that time in the
port, and this survey was attended, at the- Captain's re-
quest, by the Agent of Lloyd's himself. The former report was
confirmed in every circumstance by these persons, and the
Captain still finding he could not raise sufficient money, and
believing that the vessel was nearly. useless, advertised a sale of
the ship, at which she fetched only 14001. He then left Calcutta,