The Sun.
London, England, 1842-11-12 00:00:00

oF NEWS

AND

Pubite eptittou.

" Who runs may read.'

POIZEIGN.
The King. of the French received on 'Tuesday in
succession delegates from the Chambers of Commerce
I and Consultive Chambers of Lille, Turcoing, Roubaix,
lArmontieres, Sedan, and Valenciennes. His Meleetq.
listened with benevolent attention to their represfs"
tations of the alarm excited in these manufacturing
towns by the announcement of the projected Custom?..
Union with Belgium, and assured the delegates that
his Government would take into due consideration the
interests of all who might be involved in a question so
important, giving its utmost solicitude to every branch
of the national industry.
The King has decided, says the Moniteur, upon
keeping up the stud of the late Duke of Orleans, t 4,.
Meudon, taking upon himself the entire expenses 01
the establishment, which he places under the patron-
age and direction of his Royal Highness the Duke de
N emours.
The arrivals from Algeria at the lonian Islands have
hitherto been subjected to a quarantine of ten thin
both for ships and passengers, and of twenty-one days
for such parts of their cargoes_ as were declared at thi
lazaretto to be suspicious. It has, however, been lete.lr
decided that vessels coming from French possessions.!
,i 1
the north of Africa, with clean bills of health, shall nt„,:,
future be admitted to free pratique in the lonian ports_.;:i
A new kind of railroad is to be opened shortly nem-is
Dax, in the department des Landes. It is one fenne
altogether of wood, constructed over the sandy scri;l°l
that part of the country, for the purpose of removing`
the timber of the immense pine forests which -ell
between Bourdeaux and Bayonne. The line is •ror-
nearly finished,
The Reparateur of Lyons states that there lives I.
that town a woman 104 years of age, named gall
Platre, in full possession of her faculties.
The Memorial de Rouen of Thursday*, anuounee'•.
the total destruction by fire of the cotton mills of ~,,
Vallee, at Maromme. The loss is stated to be enoraiong*
The temperature at Paris on Wednesday. WaSthe
e
i siderably lower than on Tuesday. At s,x n -
morning it was at 22k Fahrenheit; and; at snid-`ll°
27 2-3 Fahrenheit. of
M. Lenormand, formerly Central Commissar;
Police at Nantes, and afterwards at Toulouse, west;
rested on Tuesday at Paris, and taken to the Frei ein
ture of Police. He was condemned by denu-;1 n,''
June last, to a fine of 400 f., and civic clegruua'wle .;)
for corruption in the exercise of his functions-
The Swabian Mercury states that a Ce,hli'rscusg'::
appointed by the Comitat of Oldenberg, L° „i d be—
and report upon the question, whether it we- cag.l9
advantageous to Hungary to join the German
res,.l;/
toms' Union, has delivered an opinion'that the o,j;
sure would be detrimental to the interests
country. The Commission further recommea6;
I tha!!...4
at the next sitting of the Diet, the States should pe101(
tion the Emperor of Austria to suppress the 11°
custom-houses between Hungary and Austria-
74CONEY—TRADIM—COIVIIVIZECIS' 7 and
The north-west of Ireland, especially Doneg3" „ of
the northern parts of Mayo, are now the seeneoree
ses
0,1
illicit distillation, on a larger scale than at tiny ti
during the last twenty, years, and a number of lice,7 of,,i
have been withdrawn from distillers on the. gnu!'"
defrauding the revenue. ."
NAVAL &ND MILXTAZIr.
Lieut. J. R. Wellsted, Indian Navy, and the aut:/1
of " Travels in Arabia and the Red Sea," has )11,1,'e,/,
died in India at the age of 37. He wx; for 3,e." ofj
time secretary to Sir John Malcolm, G over"' ,t
Bombay. He became attached to the -surveYingde,fli‘
pedition in the Red Sea, and explore.,d the Wan ."
Socotra. He subsequently made a tour in the illi•-111ti
rior of Oman. .

LAWND
Charles Trundell, a A
youno• maO
nLY, was charged at thet
Marlow Petty Sessions yesterdaywith stealing,
Marlow fair, from Mr. George Jordan, of Thall
n. tu
, containing abou.f.; 2001. in
Oxon, a purse • •
two bills of exchange for 501. evd.-;h. it appearednot,
some female accomplices had robbed, the complwa—
Acce3.l,
an
knit the prisoner was committed for trial as
sort'. notes,
that
„t
LITERARY AND scirEwrzrZC• bit gt4.l
Professor Owen, on whom the Royal favour 0 .
just conferred a pension, is one of the Conserlll-11:
and now Hunterian Professor of Compurative, cos-
tomy to the College, as well as author of the 000/.
logue" of that collection, which originally Nat 3?' ers'i
The sale ofthe third part of 4the late Mr. Ch urn.
{4:l
library was proceeded with by Messrs. Evans, ary
day and yesterday, and several Scottish books of grehe,ir
rarity disposed of. John Gad's " Right WaY tibra°
Kingdom of Kevin, " 1533, was 'knocked dowtn,- t
101. 15s. Chalmers has rec( ordr..:d that it was the ,it
work ever written by a Sc otchman to promote tleAr
Reformation. Several book sellers, from -Edinburg"':,4
attended the sale.

COURT-PAS Ur ONATILE. ti
The Duke and Duchess of Montrose are still 11
Buchanan.
The Duke of Buccleuch leaws Montagu House this
morning for Scotland.
The Earl and Countess of Tankerville intend.,t°ll•9
remain at Mount Felix until Ji•anuary. 0
The Countess of Falmouth has returned to 1:00
hampton Hall, Berks, from St i. James's-square. '
The Countess of Kerry ha s returned to her 17.41
near Bowood Park.
dal°
Sir John and Lady Anne Becket leave Stilt ,04
House in a few days for Som .erby Park, Lincolnsio
Lord Wrottesley has latel3 r
an astronomical observatory an his estates near Vv
verhampton. finished the erection t

-.412

LL

..O YD'S SHIPPING i—(THIS D.
LONDON, Nov. 12.—Wind
hisday at noon, -.'"l
breeze from W. to N.W., and cloudy.
DEAL, Nov. 11.—It has 1 down s.trong I,V'•
out to• day, and has now inerea 3ed to a ,gr:le. at ~ dingy
Several vessels drove, and a g reat nun-Aber are 19
with two anchors down. Art Seavvitch, Afrie3,.. the
RAMSGATE, Nov. 11.—Acrd. Jane, London, ,
s.
Cape of Good Hope ; British Q; aeen, ditto, fol.-13c" 18
PLYMOUTH, Nov. 11.—It iwn a 50°416; u
from/S.S.E. to S.W. Arrd. San 'Sp'ridone,
Thrall, after striking on the
_Balt, Jr-slhoals, bat
out damage.
Afatv.,Jf
LIVERPooL, Nov. 11.—The. 3wburn, froni„vith
ritius to London, which put int, J Rio Granee, ; re- ~,;
damage, struck on a rock, in
putting to sea 3,`e
tebes;
pairing, and sunk—crew saved. irrd. bus,
Bombay, sailed from Ascension Sept. 10 ;Co avt+
Green, Pernambuco, sailed Oct. k 3; Hermes, v';hittelc, -
Monte Video ; Kelsick Wood, 3 Berbice ; Eliza is'eyoric. •
Davies, St. Domingo; Scotland ,Robinson, Nel; w,.j oft;Sld. Sld. Margaret, Mexico ; Ferg us, thyti. .1' •Ca-
Frances, Calcutta ; Eliza John ;on, Pernambuco;is ;
roline, Africa ; Kilmaurs, sui paved from Bata
Belfast, Sunflower, Ariadne, a. ,T es Freellp-';.
OFF CAPE CLEAR, Nov. 8.-
.r;tdrri. Englan-'
York.
Demerara.
CLYDE, Nov. 10.--Sld. Raga? • Stewart,
CORR, Nov. 9.—Arrd. Wresti er, Casa Bian„ca'rul
SWANSEA, NOV. 10.—Arrd. Ss !ssoria, Gudale, 3 „,t''
paraiso, out eighty-three days, with thirty t°ll
cargo thrown overboard. vuenOS
COWES, Nov. 11.—Arrd, AntiAne, Meyer,-,,Tj'Avinr,
Ayres, antissailed for Antwerp. The Thomas
hence to Rotterdam, has put ba c k leaky.
OFF THE WIGHT, Nov. 10. ,- -Favourite -to sl../
PORTSMOUTH, Nov. 11..-1 Ari nd S.S. ',„;
Ilya-
strong and squally.—Arrd. . Majesty's sell:To: pore
cinth, China, sailed from M; inao May 3, ancl
July 7, Anger 23, Cape Sept. 12, St.,flclena 2
Ascension Ist ult.; Caroline,
.11ruct', g"A e
PENZANCE, Nov. 10.—It 1:3 blowing a 11-1 at
from S.S.. to S.W. e Sara Anna Col. with
with
from Bordeaux to Rotterdax 1, has put in here must
five feet water in her hold, an d it is expected
discharge.

RAILWAY RI muRISTS. re-
We extract from the Railway Aft tgazine the saTitn.t4in
ceived on the principal Bailsrays of Great .Pri a
refile
for the week ending on the da y a the month P
ed for
to each. The return includes -the money receiv
and °lc'
passengers, parcels, carriages, h ors:es, mails►
chandize :
Week
ended
Nov. 5
4

Total.
Miles
Name of Railway. A E. ' 41.
opene-• 2,7 0 9
Birmingham & Derby Junt A. 48 .;' 17 9,
Birmingham and Gloucester .... 55 861 18 ..i
Brandling Junction
383 47i Chester and Birkenhead. -
3 Dundee and Arbroath 161 5 17
•.• • •••• 1,919
5 Edinburgh and Glasgem ,
~
6 Eastern Counties ...... ...
5 Glasgow and Ayr ~ •
~ 8 1
-t 0 1
5 Glasgow, Paisley, & a;. ; .
ncwic 22k --
- G rand J unct, Chester & C, :re we 113
5 Great North of Englar d . ‘45
6 Great Western
Oct. 8 Hayle ... .............. ... ......•••••
0176
Nov. 5 Hull and Selby
....• ••• •-"• '`
Lancaster & Preston Ji awt to n 20/
4 Liverpool and Manchester.....-• 31
5 London and Ilirminghi. in-...-. 112 k
10 London and lilackwall ........ - 3i
5 London and Brighton .„ . 46
Ditto Shoreham Brat, el
8 London and Croydon
10 Lrndon and Greenw: ii,..„ 3l
6 London and South \ 4c.3tertt
3 Manchester, Bolton, and Br ry 10
5 Manchester &11 trni,ngkant - 31
5 Manchester and L'uds ..... ..... ril
5 Midland Countie,....
....
.....
5 Newcastle and Carlisle ....
3 Newcastle an; I North SI lie lds 7
6 Northern ar 4 Eastern .- 59
5 North :theitand
4 North Ur Lion ,. ...... 1"4
b Preston a.nd Wyre 1.9 k
5 Sheffield. and Manche: t0r...-.
10 South ;:astern
- .....
f., Taff Vale .. -.
30
(Ulster ............ .... ....... . ..... 24
5 Xerk and North, Alidiund...., 28

0ct.29
Nov. 4

1,3 7 .
0 I u
12,531 15 ‘.
!240 JO ~"
98(3 16 v

lac; 3 5
. o
g
16 298 It' 1'
'471 4)
3,654 7 9

2676
746 6 -
Li 59. i 6 gi
615 10
0,735
4,201 19 2i
2,533
1,5.19 19 5
344 17 10
167 19 1
4,1:33' 3
'9OB 3 7
I`)9 5 '
r.
127 12
183 1
542 . ,(1)
3 1 •
42 613* 24'
1,563 4

of
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A 'l,l 7 ! 'Try Tre: rINTrr,
ROLLS COURT—(THIS DAY.)
BEARD V. EDWARD.—THE DAGUERREOTYPE.
Mr. PEMBERTON, on behalf of the plaintiff, moved
forthe
an order for the committal of the defendant to
'me Queen's Bench Prison, for having disobeyed an
order made by his-Lordship on the 13th of September
~ast also for an injunction-to restrain the defendant
4.qn making, using,. selling, exercising, or putting in
it3h e .
r'tetice the invention of the plaintiff, mentioned in
ll and called the "Daguerreotype," from making
Portraits, delineations, &c., with the "Daguerreotype"
apparatus ; and also from giving instructions,
advertising to give instructions in the art.
(-"-lo plaintiff had obtained an injunction -against the
4-4:lant Edward Joseph Edwards, to restrain him
\4le defendant) his agents, servants, or workmen from
rillaking, selling, using, &c., the Daguerreotype appa-
atas, for taking portraits, delineations, &c. . The in -
Junction was granutd on the 13th of September, 1842,
I%ikliberty to . the defendant to move on the 27th
f
the same month to have the injunction dissolved.
fitstead, however, of dissolving the injunction, the de-
endant in contempt of that order had, in the course of
the' month of September, 1842, inserted advertisements
othe Times newspaper, and weekly Dispatch,
the effect, that, in consequence of the
or? lil'etion granted against him by the Master
thebi Rolls, no portraits should be taken at his esta-
but blishment 52, Liverpool-street, Broad-street, London,
that instructions in the art continued to be given
3;-1)411 at the rate of five guineas for each pupil ; that
si-e injunction would be argued at his Lordship's re-
i dente on the 28th inst. (September), and that any
9rioation which could tend to support the defend-
a
Eis ease would be thankfully received.
Affidavits of Jabez Hogg, an assistant of Mr. Beard,
g-cl.°thers, were read to the effect that the Daguerreo-
wl4'l apparatus, process, &c., used by the defendant
a:lthe same as that used by Mr. Beard.
do-For the defence it was stated, that since the injunc-
d,,,,nhad been granted, nothing had been done by the
ken by
in violation of it ; that no portraits were
Ith.en, by the apparatus at his establishment with his
v,„-fwiedge, and it was therefor contended, that there
4,4 no grounds for the present application ; and that
c°rdingly it should not be granted. '
Lord LANGDALE—If the defendant consents to
tay, the costs' of the motion Which he has brought on
tl 'lli conduct, and if he has done nothing to violate
aorder, I should be sorry to press him for committal.
15. PEMBERTON—We pray that the injunction
?nay
ino.be extended to restrain the defendant from sell-
he aPparatus, or giving instructions in the art.
Ford LA-ziGrat.r.--The injunction ought to be ex-
- de(' to selling or disposing of the apparatus,
fe rectl
Y or indirectly, but not to restraining the de-
ft..latit from giving instructions in the art. You
tiil29t restrain a man from assisting to give instruc-
e4:Lin An art, as for instance in the case of the steam-
hire, 'Von could not have a person who might
44'0,e,rstan'd the subject better prevented from assisting
p ‘Qer tO gi ye instructions upon the matter.—Order
accord;.;ngly.

VICE-CHANCERY.—(THIS DAY).
(Before Vice-Chancellor Sir JAMES WIGRAII.)
THE ATTORNMY-GENERAL V. FOSTER. . d
4,1_114,11i_s caus.e, the arguments in which occupie
„,"irsl days, his Honour
,g,ay.e.judgment this morning.
•"-nslloNouß said—ln 'Trinity term, 1835, an infor:
raation
n..., was filed against certain trustees and others,
to`'iuding amongst the trustees, Thomas Earl of Wil-
sb• • the Rev. Thos. Foxley, and John Ford. The
,A,,!J et of that information, according to the prayer,
~e 7, t° make very considerablethe
alterations in the pre-
scn, j triode of' carrying on Manchester Grammar
"'al ; and it prayed, amongst other things,
within the
141,,i6t be declared that persons not resident within the
T:11 of Manchester were not eligible to be trustees.
tonkichaelmas term, 1837, a supplemental infoma-
13,:Ewas filed against Lord Franci.s Egerton, the Rev.
or isleY and John William Williams, and the prayer
I,4"`ix.i.til,, information was that the Attorney-General
16,t have the same relief against them as was sought
d' the original inforination to beh obtained against the
Aendants, in whose place they had been substituted.
ilti'wers to both the above informations were filed by
..us .
f, nefendents. After the answers were filed, and
Nviur, e the information came on to be heard, the Earl of
Tct:)n resigned his situation as trustee, and the Rev.
trust"las Foxley and John Ford died. The. surviving
I,.ees of the charity thereupon appointed John
oster
hn_. 1 Wilson Pati:sul and —Birley, trustees of the
t,ssrity. The original and supplemental information
the on to be heard before the Lord Chancellor, on
:40th of November, 1h839, but the judgment was
of November, 1840. On
n'ait delivered till the 10t
dlivered, but the minutes
: day judgment_
sere Oct settled tillloNnN'asg after the present information
~,,,_ filed, on the 26th of March, 1841, a supple-
"lltal informAtion was filed against the defendants,
ti°rster, Wilson Patten, and Birley. This informa-
°n, which was 6;1 information then before the Court,
ritat,,i
and the
Pra
, the filing of the original information
against the filing 01F the supplemental information
ey.... I- r
.Francis Egerton and others, and the
deaths'
°f'° dresig-n-aiosn. of the Earl_ Of Wilton, the
q r,,,-,.„(1/4 t OXlev and Ford, and the appointment of
tfli . "" trastNi, ho were the defendants in this in-
t°lnati". It alsom' stated, that the three new trtuhse-
cell? tees,
Undertaken to act in the trusts. of
coac.y, h..._
tanee e "L that they respectively resided ata dis-
place 'wit the town of Manchester,. and had no
infi;i4.:?f residence within the parish.. The
11*. , Lion stated, that at the hearing of
on
iaPPeared f and
supplemental informations counsel
noutta , or the new trustees, and undertook to be
ti,e, uy the decree of this Court.
the *t stated various The information
arious changes which had taken place in
telinuirlees of high master, usher, and
.cleanof the
pl. "°'• 'Upon application by the solicitor for the
theesent information- to the solicitor for the defendants,
Lei new trustees, they objected to any further stepew
ts„-ug taken in the cause, unless and until the n
t'-vores) and the high master, usher, and dean respe.c-
thl 1:,,Y, were brought before the Court as parties
ti:,:-‘° and enabled to put in answers to the infbrma,.-
te "..1 To the last information the new trustees, Fosd
a r':Vilson Patten, and Birley, had appeared an
:sre& By their answers they denied that coun-
aPPeared for them, and gave the undertaking
gostea •
sug-
thl.. 11l the present information. They say that
date
~,er,e trustees of the charity before and at the
"a LI
-I the decree ; but nevertheless they were neithert,
sumo parties parties thereto, nor named therein ; thdat
thathe
th.",,, eA was therefore invalid against them ; an
to.: Alfas therefore r.,
~,) General was not entitled as i:gainst them
I 'll,c'., r'•iet- pravd by the original and supplementalt
ilfurtr,-"''ltAntl• The answer, in addition to that, went
p°; - set out a great deal of matter for the pur-
ju4iis - ()f observing why, upon the merits of the
tli-,gulQnt which Lord Cottenham pronounced,
toc'"„ oug•ht nut to be bound by it. They referred
the answers answers of the former trustees,but
swelY2ade those additional statements. To this an-
14;‘,"ve exceptions were filed for impertinence. The
It -3(er also overruled these exceptions, and the case
as
exte argued before him (the Vice-Chancellor) upon
()pi Pt I°lls to the Master's report, the Master being of
111.,,111arl that the matter was not impertinent. In thel
giri,Pent before him no attempt was made to ciistil -
4;11 anY one part of the matter of exceptions from
Pr•,-„;°1;• The question was rested upon one broad
tel, -Tie, that in the circumstances of this case the
st.',N:,trustees were completely bound by the answers
it "le trustees in whose place they had come, and that.
4414‘.,,a's not competent to them to make a case by their
thse-t for showing why, upon the merits of
be made
4gain4'4.eree of December, 1839, ought not to e d
the t',.st" them. He was referred to cases as furnishingb
vernr'peiple b
which his judgment should., eesgoa_
To the principle .t
blisliee'd 1134 the Ypresent case.
nnglit 4 Y those cases he entirel3, acceded. Nothing
ealiod 4,1.° be in the answer except that which was
fence '()1. by the bill, or would be aterial to the de-
rik.,rf,,vvitli
reference to the decree or order which.
tile—` be made. The question was upon the applica-
111)1T:,t.hat principle to the present case. lie began
t4kin,,.."ing out of consideration the alleged under-
orife''' i of counsel at the hearing
of the
truth al ttnd supplemental information. The
Ile of that allegation was in
might not es-
hav,.C4 it in proof. The defendants must, therefore,
tioo7 a right to make such a defence to this infort___n_a-
ask.„'''s would be required in that alternative. The
tw'(;',l:_ellt in support of the exceptions was rested on
lati `"4`..inet grounds. First, it was said that the re-
ell,"jef the Parties was such that when the fact was
pia! 'Omitted that the new trustees came into the
fiat nf those who had answered to the original infor-
eQsdi!)n, they were as completely bound by the pro-
lisa Ings in ti:.e cause, including the decree, as if they
fast, 'ell original parties themselves. It was said, in
wili `Lord the information was that kind of pleading
inf'se Lord Redesdale had • described as " original
therefor in the nature of a bill of reviver ;" and,
tionef()re, that the defendants, when once their posi-
kor,Wa', established, are completely bound by the
tioi,`"dings• Secondly, it was said, that if the rela-
tor 8 Of tile partie3 were not such as to entitle the At-
gr,ll%-Ceneral to that benefit which the previous
4(.) frll- assumed, the supplemental information was
the daenfled as to tender one issue only, namely, whether
Proc •IntntsTwere lsound or not bound by the former
i.l:loieceit.ds'el• Ile had considered both these grounds,
1 -e thought could not be supported. He
newlligilt the practice of the Court required that the
Court
trustces
Cor rt at the should have bean brought before the
fir nia,tioLn,
°n which
of the original supplemental in •
which the decree was ultimately drawn
any .'"eY had the same interest in the charity as
position it other trustees. If he was right in his
the
time
it Would follow that the new trustees must, at
the °l answering this information, have been in
zittill
vsealir
eapsoesiittilovnaaas if it had been filed against them.
b 11132.J1 .(:7tfet On Cite Nr
clear that they might have made
Mai the justice of the case required
question of costs, if they needlessly re-

peatcd what was contained in the former answer. His

Liu.: Lew Lrustees would Le
affected by the then answers of the former trustees,-
in the proceedings in the cause, but that they were
now so bound as to be absolutely precluded from
making a proper ease against the decree. Upon the
second question, which was one of strict pleading, he
felt great difficulty; but, adverting to what Lord
iledesdale had said as to bills filed for the purpose of
having the benefit of former proceedings against
those who were not parties to them, in pages 97 and
98, 4th edition, and referring particularly to what
Lord Eldon said, in Lloyd and Jones 9th Iresey, not-
withstanding his opinion as to what might be the con-
venient rule of practice, he thought the facts which
constituted the case made by the original information,
were so far put in issue by the present information,
that the Court might, at the hearing of this informa-
tion, go into the case as against the new trustees, and
that it could not be confined to the narrow issue which
the present argument of the Attorney-General sup-
posed. He thought, therefore, the Master's Report
must be confirmed.

QUEEN'S BENCH—(THIS DAY.)
(Sittings in Banco.)
RENNO V. BENNETT.

This was an action, brought by the plaintiff, a
sailor, to recover damages from the defendant, the
owner of a ship, for having been left on shore by the
defendant's officers, at a port in the Island of Java.
The defendant pleaded that the plaintiff had been
guilty of mutinous conduct, and that, therefore, he
had no claim ' whatever on defendant. It appeared
that the plaintiff had shipped, as a seaman, on board
the defendant's ship, on a whaling voyage to the
the South Sea, on the usual terms viz., to share in
the proceeds of the voyage. The ship was commanded
by a person named Hill, who died on the voyage. The
ship put into the Island of Java, a person named
Smith, a Prussian, having assumed the command. On
their arrival at Java, Smith proposed to plaintiff to
sign an agreement to proceed for the rest of the
voyage under his (Smith's) command. The plaintiff
refused to sign any such agreement, or to proceed on
the voyage under Smith's command, or to do any duty
unless Smith was willing to take the ship to an Eng-
lish port. Smith then ordered the plaintiff ashore,
and left him at Java; and contended that he was jus-
tified in doing so, on account of the plaintiff's muti-
nous conduct. The replication was de injuria, and
consequently admitted that Smith was master. The
case came on for trial before Lord Chief Justice
Tindal, and the verdict was returned for the defendant.
Mr. James had obtained a rule nisi for a new trial,
on the ground that Smith, being a foreigner, was not
entitled under the navigation laws to act as master for
any other purpose than to carry the ship to an Eng-
lish port, and that Smith had no right to insist on the
plaintiff signing the agreement. The Lord Chief
Justice at the trial had refused to entertain the ques-
tion of Smith's eligibility to act as master, inasmuch
as the question had not been raised by the pleadings.
It having been distinctly admitted in the replication
that he was the master. This the Learned Counsel,
on moving for his stile, contended was a misdirection,
and therefore moved for a rule to show cause why a
new trial should not be granted, which rule he obtained.
Mr. THESIGER to-day showed cause against the
rule, and contended that in the state of the pleadings
the direction of the Lord Chief Justice and the finding
of the Jury was perfectly right. If it had been in-
tended to dispute Smith's authority to act as master,
that matter should have been specially pleaded ; in-
stead of which, by putting in a replication de injuria,
the plaintiff distinctly admitted that Smith was master,
and, therefore, was precluded from disputing his autho-
rity. He further contended, that it was perfectly
immaterial whether Smith was authorised to require
him to sign new articles or not, inasmuch as plaintiff
was bound by the old articles to Hill to proceed on
the voyage. If the only evidence of mutinous con-
duct had been his refusal to sign the articles, a ques-
tion might have arisen as to whether that would have
been sufficient to support the plea of justification ; but
there was evidence of a refusal to proceed on the voy-
age unless Smith would take the ves3el into an Eng-
lish port, and also of having jeered those of the crew
who were acting in obedience to the Captain's orders.
He therefore submitted that the rule must be dis-
charged.
Mr. JAMES, in supporting the rule, contended that
the plaintiff had not been guilty of mutinous conduct.
In order to prove mutinous conduct, it was necessary
to prove that he had refused to obey some lawful
commands of the master. Now, Smith being a
foreigner, it was not competent to him, according to
the Navigation Law, to act as master, except for the
purpose of taking the ship into an English port, and
the plaintiff had not refused to obey any commands
for that purpose.
Lord DENMAN thought the case was perfectly
clear. The plea was that the plaintiff had been guilty
of mutinous conduct. The replication admitted that
Smith exercised the authority of master, and that it
was proved that plaintiff had refused to work the ship
in obedience to his commands, which was clearly mu-
tinous conduct. It was now attempted to be shown
that Smith being a foreigner, was not entitled to act
as master, but the question did not arise in the
pleadings. The replication admitted the fact that
Smith was master. If it had been intended to rely
on the fact of Smith not being authorised to act as
master, on the ground that he was a foreigner, the.
question ought to have been raised upon the pleadings,
and then, perhaps, Smith might have put in evidence
to show that he was not a foreigner, and that he was
fully authorised to act as master. He thought the
direction of the Lord Chief Justice was right, and that
the verdict was right, and therefore the rule must be
discharged.
The other Judges concurred.--Rule discharged.