The Sun.
London, England, 1845-12-18 00:00:00

THE DUKE OF BRUNSWICK V. BARKER.

This was an action of debt, brought to recover the sum
of 2001. for money lent, and on account, to which
the defendant had pleaded—first, that he was never in-
debted; and, secondly, that the plaintiff was indebted to
him 500/. for work and labour done. The plaintiff re-
plied joining issue upon the first plea, and denying that
he ever was indebted to the defendant as he alleged.
Mr. Jervis and Mr. Paine appeared for the plaintiff,
and Mr. Martin for the defendant.

Mr. JERVIS stated the plaintiff's case. He had the
honour on that occasion to appear as counsel for his
Serene Highness Charles Frederick Augustus, Duke of
Brunswick, who had been reluctantly compelled to bring
the present action, to recover the sum of 2001., with
interest, which was advanced to the defendant in
the month of July, 1842. His Serene Highness, as no
doubt the jury were aware, was the possessor of
a large income, and was a liberal patron of various
arts and professions. Amongst others, his Serene
Highness had been a distinguished patron of that to
which Mr. Barker belonged. Mr. Barker was a singer
of some celebrity, and was formerly employed at Drury-
lane, and likewise the Princess' Theatres. In the
month of July, 1842, Mr. Barker bad occasion to ex-
pend a considerable sum of money about cer-
tain matters in which he was engaged, but
in no account or shape connected with the
Duke. Indeed, he believed the matter had relation
to the management of the affairs of the late Earl of Co-
ventry, and to enable him to continue his proceedings
in the matter, Mr. Barker applied to the Duke for the
loan of a sum of money. His Serene Highness con-
sented to advance him 200/., and the money was handed
over to him by one of his Highness's suite, and Mr.
Barker gave a written acknowledgement for the money.
Repeated applications had since been made to Mr. Barker
to refund the money, but Mr. Barker, not being in a
position to do so, and setting up the preposterous claim
mentioned in his pleas, the Duke was compelled to have
recourse to law to recover the money he had advanced.
Baron Andlau was the first witness called. He stated
that he was formerly equerry to the Duke, and remem-
bered perfectly well his Highness lending Mr. Barker
the 2001. It was in the month of July, 1842. He had
since seen Mr. Barker on the subject of its repayment,
when Mr. Barker offered to refund it, by paying out of
his salary weekly instalments of 11. or 21.
On cross-examination, he said he understood the money
was advanced to Mr. Barker for a certain purpose. It
was to enable him to prosecute certain proceedings he
had instituted for the purpose of getting the late Lord
Coventry out of confinement. It was distinctly under-
stood, however, that the money was to be repaid, and
the proceedings were certainly not prosecuted for, or on
behalf of, the Duke.
Mr. MARTIN said, after this conclusive evidence of the
debt, he would not waste the time of the Court by pro-
ceeding with the defence, but allow the plaintiff to take
a verdict.—A verdict was, therefore, entered for the
noble plaintiff for the full amount claimed.

ADMIRALTY COURT, Dec. 17.
THE EATAVIER.-COLLISION.

This was a suit to recover compensation for the da-
mage sustained by the Gravesend steamer Topaz, from
a collision which occurred is Limehouse-reach, between
that vessel and a Dutch steamer, the Batavier.

It appeared that the Gravesend steamer was at anchor
in the middle of the river, and was run into by the Dutch
vessel, which was going clown the river. This brief
statement of the position of the two vessels would seem
to throw the whole blame upon the latter ; but on the
part of her owners it was to-day contended that the col-
lision arose from the improper and un-nautical manner
in which the Topaz was anchored. She was swinging
with a single anchor, instead of a double anchor, which
it was said she ought to have bad, and in consequence of I
her thus swinging loose in the middle of the stream,
it was contended that the accident occurred. For
the owners, however, of the Topaz it was argued
that the Dutchman had no business to steer so closely to
her, that there was plenty of room to pass without doing
so, and that the blame was exclusively here. A further
point was raised in the case, and upon it the decision ul-
timately rested. The Dutch vessel had taken, in obe-
dience to the provisions of the Pilotage Act, as pilot on
board, a man who was always employed by her owners
in going up and down the Thames ; and the point urged
was that, at the time of the collision, the Batavier was
under his exclusive command, and that her owners were
not liable for the misconduct or mistake of a man
whom they only engaged under the compulsion of au
Act of Parliament.
Dr. Addams and Dr. Jenner appeared for the owners
of the Topaz ; Dr. Curtis and Dr. Bay ford for the
owners of the Batavier.
The Trinity Masters (by whom the Court was assisted
on the question of nautical skill) expressed their opi-
nion there was no blame imputable to the Topaz in her
mode of anchoring • that the collision occurred through
the bad steering of the Batavier, but that the fault
could not be laid to the charge of her master and crew,
as they had acted, as they were bound to do, under the
control and direction of the licensed pilot who was on
board.
Dr. ADDAMS then submitted that the ordinary con-
struction put upon the Pilotage Act with regard to the
liability of the pilot himself, and the non-liability of the
owners who had been obliged to employ him, did not
apply to this case. Here, though the owners had been
compelled to employ a pilot, they had exercised their
own choice, and had always selected this particular man.
He had thus become their agent or servant, and for his
misconduct they were fairly liable.
Dr. LUSHINGTON thought otherwise. The Act of
Parliament compelled the owners of vessels sailing up
and down the Thames to take a duly licensed pilot on
board, and it would be most unjust to make them re-
sponsible for the conduct of a man acting in their ser-
vice under such circumstances. It did not affect, and
would not remove, that injustice—that the master or
owners had selected one particular man, and always
employed him. Their selection was confined to a cer-
tain class of men, in whose appointment they had no
control, and such a selection could not fix upon them a
liability so opposed to natural justice. The Trinity
Masters had held that the blame of this collision was
attributable to the pilot alone, and that the master and
crew were open to no censure—had been guilty of no
' misconduct. Under such circumstances, the Court could
not hold the owners responsible, and must dismiss the
▪ present suit.