Star.
London, England, 1824-11-24 00:00:00

COURT OF COMMON PLEAS, NOV. 23.

This morning the Court was occupied in hearing
motions of course, which involved nu point of pub-
lic interest.

lIIGH COURT OF ADMIRALTY, NOVEMBER 23.
THE APOLLO.
IMPORTANT TO THE COMMERCIAL INTERESTS.

It will be recollected that this case was argued on al
former Court-day, and the judgment reserved for this
morning.
Lord STOWELL proceeded to give judgment to the
following effect :—This suit was commenced by Charles
Bryan Tarbutt, in 1853, against William Tennant and
George Nesbit, out nets of five-eighths of the ship Apollo,
upon her voyage to the East Indies, which voyage he
dissented to, calling upon them to give security for the
sale return of the ship, or for the estimated value of
his shale, being three eighths, which estimated value
was 3.000 i. Various proceedings have taken place, but
the estimated value has been brought in, after security
taken, and proof that the ship had been lost off the
Cape of Good I-lope, in 1823. The party Tarbutt prays
that the money may be paid over to him, which has
been resisted upon various grounds, stated in an Act of
Court, and supported by various affidavi.s, which are
opposed by contradictory statements and affidavit,. The
Court has to inquire into two questions; one, respecting
its jurisdiction and legal ability to retain such a cause;
and the other, if it is satisfied of that jurisdiction and
legal ability, whether the facts, when proved, lead to
il
any conclusion which the Court can safely form? The
Counsel, in arguing the case on the part of the persons
who pray the Court to proceed in these inquiries, have
proved it convenient to enter host into the question of
facts, and then subsequently proceed into the question of
jmisdiction. The Court &Inds it necessary to alter that
arrangement, and to consider, first, the question of juris-
diction. The facts must undoubtedly first be stated
sufficiently to raise that question of jilt isdiztion by shew-
ing their nature generally; hot the Court will not pro-
ceed to examine the facts in the way that would become
necessary to produce any_legal conclusion upon them,
unless it is first satisfied that it has that legal power to
retain them for the purpose of establishing their legal
effect ; if it is not so satisfied, it will dismiss an inquiry
hich can lead to no active conclusion. Upon the
question of jurisdiction, it is nut unimportaiit to observe,
that the Court ha, repeatedly grne ti.e length of taking
these stipulations in favour of a dissentient co-partner,
and upon his applicatioa that a sec unity may be given
for the safe return of the -vessel upon the voyage to
which he dissents, or otherwise for the estimated value
of his own share. This prieztice has in some earlier in-

stances been subject to some doubts; but it has entirely
survived thosesdoubts, and it has beets formally recog-
nized by the Courts of Common Law, and forcibly re-
commended by the emphatical expressions alluded to,
that ships w ere made to plough the ocean, and not to
rot by the wall." There is no 3oubt therefore of the
legality of the initiatory measure here taken of compel-
ling such security to be given. The Gourt, in this ope.
ration, is not merely ministerial, for it compels the
patty authoritatively to find the security ; it likewise,
in the usual termination, compels the party to pay the
sums stipulated in the bond given for the security.—
Ile bail-bond contemplates no other object than the
safe return of the vessel, or, in default thereof, of the
payment of the stipulated sum. That is the whole ex-
tent of the transaction upon which the parties and the
Court are acting in this process. No other object is pro-
posed, and no case, either within the scope of my own
inquiry, or which has been discovered by the diligence
of the Advocates, upon repeated challenges given them
for that purpose, in which the Court has moved beyond
those limits. What is now proposed must therefore, be
considered as a novel enterprise, recommended to the
Court without any support from former usage, and to
be taken up upon new and unprecedented views of the
subject. It has been said that the commission or pa-
tent of the Judge of the Admiralty authorises such
an assumption, and the words of that commission might
countenance such an attempt ; but it is universally',
known that a great part of the powers given by the,
terms of that commission are totally inoperative, and
that its active jurisdiction stands in need of the support
of continued exercise and usage. It has been said that
no cases occur in which other Courts have interfered to
restrain such a movement. On the part of the Court of
Admiralty, such ap argument would be entitled to
grave consideration, if it could be shewn that that Court
had ever Made such a movement, so as to loutish a
ground for the interference of any other Court; then
that this Court bad proceeded so far without being in-
terrupted, the argument might have considerable
weight ; but if no case can be shewn to have ever ex-
isted, in which the determined hostility of the adverse
parties has ever invoked and obtained the aid of the
Court for such a purpose, the first and most natural
conclusion is, that this Court has never by any pro-
ceedings of that kind furnished occasion for such an
interruption ; it has kept within its known limits, and
on that account alone has not been impeded. It has
been said that other Courts exercise a salutary, autho-
rity over their own recognizances, so as to make them
square arid' the exact justice between the parties. But
even taking that these stipulations could with pro.
priety be considered as recognizances, it is to be re-
membered that those Courts, in this process of distribu-
tive justice between the parties, only exercise an autho-
rity which they possess over thegeneral subject. But in
this Court no man would presume to say that it pos-
sessed a general jurisdiction to such an extent. A co-
partner could not originate a suit for accounts in this
Court ; and if it cquld not originate, how could it assume
a jurisdiction to do so, merely because there was a sti-
pulation existing in the Court ? pointing, to different
transactions, and in its terms and meaning pointing
exclusively to a remedy for that object of complaint
only. What is the nature of the bail bond or stipula-
tion given in this cause? It looks, as I have observed,
only to the event of the loss of the ship, and to the pay-
ment of the estimated value (in that case) to the part
owner. It would be a very singular way of considering
this subject, if it could be contended that though it pos-
sessed no jurisdiction to entertain a suit of accounts ori-
ginally, yet it could hang a jurisdiction useful and
effective to this purpose upon the peg of a stipulation
which never contemplated any such matter, but looked
only to the intention and meaning of the parties to the
single consideration of a remedy for the loss of the ship.
If it is said that the Court is deficient in doing justice,
it is to be remembered that the Court has administered
all the justice which the parties have looked for and
provided to obtain in their original contract, and in
their application to its authority. I am satisfied who-
ever considers the terms of the bail-bond must acquiesce
in the conclusion, that it is strictly confined to the event
of the loss of the vessel ; and therefore I think the only
case in which it is possible to conceive that a party ac-
cepting such a stipulation would forfeit the whole, or
part of the estimated sum, would be a case, in which
lie stood charged with having actually and efficiently
contributed to that loss somehow or other. But in that
case the Court might possibly be induced to wait till the
truth of the charge was investigated by a competent
Court, and such a Court "must possess the power of in-
quiring into a transaction partaking most strongly of a
criminal nature,by the use of a compulsory process for the
attendance of witnesses, and the test of a cross-examina-
tion applied to their testimony. In the preient case, the
Gentlemen have resorted to a mode of proceeding
totally destitute of these advantages, and which they
most assuredly would not have done in a case imputing
malice and hostility, if they could have possibly re-
sorted to the regular mode of plea and proof; for they
could not reasonably expect that the Court would pre-
sume to decide upon charges of such a nature upon
mere voluntary affidavits, brought in on both sides by
persons who chose to furnish them, without any liability
to cross-examination. It affords no mean argument
against the existence of such a jurisdiction, that it must
resort to such an insufficient process, and it therefore
proves its own failure in the practice as well as in the
principle. Upon the whole, I am of opinion that I must
keep within the known limits; and no sense of judicial
duties which I have ever entertained has led me to sup-
pose that ampliarejarisdictionsm by private authority
be one of those duties. I come now to observe upon
the facts, and rather with a view to the satisfaction of
the parties and their Counsel than with any intention of
considering their legal effect; for if I am right in the
opinion I have signified, the Court cannot pronounce
for their legal effect, having no jurisdiction for that
purpose. I have already said, that if they were causes
immediately pointing, to the loss of the vessel, and ac-
tually bearing upon it, and they were urged with an
aps.earance of sincerity, the Court might possibly be
induced to wait till an examination had taken place in-
the proper Forum; but they do not appear to me to
be entitled to any such degree of deliberate respect,
being somewhat foreign to the real question, others
lying 'entirely out of the jurisdiction, and others per-
fectly out of both. It appears that this said Taibutt,
who had been the former Captain of the ship in selieral
voyages to the East Indies (and afterwards was she
managing owner) was deposed from the management
of its concerns, they had likewise deposed the succeed-
ing Captain, and substituted another in his stead, to
whose ignorance and incapacity the loss of this vessel
has been attributed by the verdict of a Jury of this
country. It is probable enough that these removals,
being rather of the nature of discourtesies and disobli-

gation, might create some degree of irritation in the
mind of the copartner ; as it is, I suppose, no very un-
fiecittent case that such differences do not produce any
fiiendly sympathies amongst them ; but the true ques-
tion is, how far any irritation in his mind has contributed
to the unfortunate event of the loss of the vessel by any
act to which it has given birth? It is charged upon
him, that after having taken the protecting step
which he had resorted to in this Court, he did apply
to the Cowt of Chancery for an injunction to pre-
vent her going to sea at all, suppressing the men-
tion of the security he had taken for the value
of his share in the Court of Admiralty. If ,this
produced any material delay contributing to the loss
of the ship, it might he worthy of some consideration
somewhere ; but it it produced no such material delay, it
could not be taken into the account here ; and it was
only a caution justified by reasonable motives, in or der
to protect himself from any liabilities for the expenses
of repairs and improvements in the ship which he dis-
approved ; and the caution was the more necessary, if
it be true, as asserted by the other parties in the case,
that after having taken the stipulation in the Admi-
ralty, he had no right whatever to controul any expen-
diture which they might think proper to make under
pretence of being necessary for the prosecution of this
voyage. After further remarks, his Lordship, upon the
whole, was of opinion that the Court had no jurisdiction
left them, but to the extent granted by the bond. And
if the parties were aggrieved, they must resort to ano-
ther Court. His Lordship then went into the circum-
, stances of Mr. Tarbutt's application to the Court of
Chancery, and he was of opinion that in doing so he had
used no more than necessary caution. The suppression
of some facts alluded to in former reports was not of a
material consequence to the cause, as that Court had
then stated when giving its final judgment, and they
did not remark upon their suppression. The question
of costs was to be decided, which he should order to be
paid to Mr. Tarbutt, subject to this reservation, that as
Mr. Taibutt had introduced various acts and matters
not necessary, the Registrar should not include any of
them; and his Lordship observed he would, in all fu-
ture cases, take this mode of correcting the too general
practice of introducing irrelevant matter into the pro-
ceedings of,this Court.

Letters from Cadiz of the 28th of October state, that
all the quarantine restrictions have been taken off fot
vessels from the Mediterranean and European ports,
and that after the 15th of November vessels from Ame-
rica were to be subject to the quarantine laws, accord.
ing to the bills of health which might be produced.

Letters by a Leeward Island Mail, says the Glasgow
Courier, were received in Glasgow on Saturday. The letters from
the Leeward Colonies are to the middle of October. The islands
were quiet, and the weather favourable. The letters from St.
Thomas's, of the 13th October, mention that the Ashantees had
taken Cape Coast Castle. How the intelligence has reached St.
Thomas's, we have not heard.

THE Rev. ALEX. Ilwrcuhn.—Yesterday evening a
meeting of the friends of the above Gentleman was held
at the Albion Chapel, Moorfields—Mr. FLETCHER in
the chair, who addressed the meeting at cohsiderable
length, and congratulated them on the result of that
day's proceedings in Chancery. He regretted they had
caused so much anxiety to his friends, whose kindness
to him he could never sufficiently thank them for. lb the
course of his speech considerable confusion was created
by a person in the gallery calling out—" A person who
breaks a promise of marriage made to a woman is un-
worthy the name of man.' Thanks were then voted to
the managers of the Chapel, and the meeting separated
DREADFUL ACClDlNT.—Yesterday, at four o'clock,
an Inquest was held at the Monster Tavern,, Chelsea, on
the bodies of John Smith and Joseph Knowles', two of
the men employed in the distillery of Messrs. Knowles
and Co. of Millbank, who on Monday evening were
drowned in a large vat of spirits in process of fermen-
tation. It appeared that the men had been about four
minutes employed near the vat, when the air becoming
foul, though they had been directed not to go near the
vats without a light, fell into a quantity of wash in a
high state of fermentation. One of the men endea-
voured to assist them out by means of a ladder, and
Smith, who was clinging to the side, exclaimed, " Oh !
GOD help me I" and then fell into the wash. Smith was
immediately taken out, and every means used for his
restoration, but without effect. To find Knowles's body
the whole of the wash was let out, and he was disco-
vered lying at the bottom quite dead. All the witnesses
who were examined agreed that it was an accident, and
a verdict to that offect was returned, with a deodand
of one shilling.

BRITISH 14USSUM.—The first of the immense columns
designed by Mr. Smirke for the interior of the King's
Library, was delivered at the new building on Friday :
they are of the red Peterhead granite, and the shafts,
twenty-one feet six inches long, in one piece. It is in-
tended to have them highly polished, and as they are
the produce of our own country, and superior to any
brought from Egypt and deposited at the Museum,
they are interesting in a national point of view.
RUSSIAN GRAIN-BRIDGE.—A chain-bridge, the first
of its kind in Russia, is about to be constructed over
the canal of Maika. It will be executed after the de-
sign of Colonel Dufour, of Geneva, who has sent to St.
Petersburgh a beautiful model of that which he erected
in his own country last year. . . . _

Some of our contemporaries have been expressing
their fears for the indigo crop in that part of the Dacca
distrrct which has been ravaged by the Burmese. This
fear is quite groundless, as there is little or no indigo
produced in that part of the country. The crop pecu-
liar to that part of the country is safflower, which has
of late come very much into use as a dye. The de-
struction of this article is the more to be lamented, as
there is but very little of it at present in the market;
and the only other part of the world from which it can
be got is the Burmese territory, which is of course for
the present shut against us.
How astonishingly great is the dispatch in travelling
now a days. The New York Gazette of the 15tli
mentions, that a Gentleman left that city on the 16th
August, for Liverpool, and returned in the James Crop-
per, having been absent only 57 days.
CRA tuTtEs.—,-During the present month; the Dean of
Westminster has released from Tothill•fields Bridewell,
no less than sixteen poor men, who were confined in the
above prison for small debts, which they were unequal
to discharge; this act of benevolence has been the means
of gladdening the hearts of fourteen wives, the Mothers
of forty-seven children, by the rani n of their husbands
to their homes.—ln addition to the above charity, the
Tiustees of the celebrated Dr. Busby have sent a quan-
tity of coals, and above twenty Firs ,of excellent Wit-
aey blankets, for the use of the poor prisoners confined
in the above place ; at this inclement season of the year,
the above necessary articles axe peculiarly gratehtl..

POLICE INTELLIGENCE.
MANSION.HOUSE.
Pieurocerrs.—A commercial Gentleman of great respectability
came to apprize the LORD Moro% publicly, that the Royal I.
change was infested by a gang of pickpockets, who were dr„st4
so like merchants that their real character could not easily be
tinguished. Ile was himself walking from the south gate of the I.:t.
change towards Sweeting's-alley, when he passed five of them, v„,
looked like men of business standing together in conversation. Ai
he passed through the knot, he felt a :witch at his pocket, and at.
terwards found that his pocket was cut through, hut not sufficienz%
to nermit his pocket-book to drop. He had 17001. in bin. of e•;*.
change in the pocket-book. This communication was made to ?La
commercial men on their guard.

GUILDHALL.
Mrs. &damns, the wife of an extensive dealer in Field-I • I•le, wa,
brought up on a charge of receiving stolen property.
Herring, the superintentlant or the city Polite, was rim. a
thief to St. Andrew • watch-house. when a boy stole id! 1,1,,dC.,:
chief, and carried it to Mrs. Solomon's shop ; it was Ion.:
the window for sale, and Herring went to inspect it, ht.- re,er,:r
the seizure of it till after he had spoke to her. Mrs. St limo,'. Is,
saw the officer inspecting the handkerchief, and it was pr,‘,.d
told his mother, when it was taken away, and she now pt,,,t,„::
denied it had ever been in her possession. She was ordered tothe
bail for her appearance at the Sessions if called upon.