Star.
London, England, 1823-05-30 00:00:00

,LA IV INTEL-LIGEN 'E.

COURT OF KING'S 13RNCH. MAY 2L •
()Am NG TIIANSACTIOIf.

MURRAY V. THE EARL. 01.8YAIR. •. i;'.
This action was brout;ht by the plaintiff, iistledmi•
nistrator of the late Williatn Murray. against tlik pre-
sent Lord Stair, on a bond bearing date the 3d of
November, 1813. The plaiatifriOis declaration al-
leged that the defendant mailer And delivered the
bond as his deed. The condition was for payment
within six nionths after the death of the then Lord
Stair to Mr. William Murray of the sum of 2,0001.
. The defendant pleaded, first, that the bond' was Dot
his; 'secondly, that he delivered it not as his deed,
but as a writing to be held over as his deed after the .
death of Lord Starr. He next pleaded that he sealed
this and delivered it ai-a writing to be considered as
his deed, on the delivery of two promissory notes
which were not delivered. Tke writing having been
delivered before-the death of Lord Stair, and the
notes not delivered, it was not his deed.
The SOLICITOR-GEYERAL stated the facts. The
plaintiff, an Officer of the Navy, sued as the repre-
sentative of his late father, who-received,in his Nisi-
ness as an Army Agent, two notes, accepted by the
present Earl of Stair, at the time he was Mr. Dal- '
rymple. The bills were the result of a gaming trans-
action at Paris, and when Lord Stair was called upon
for payment, the bond in question was given to Mr
Sanders, LGrd Stair's attorney. The objection, he
understood, was, that the terms of the bond had not
been complied with, inasmuch as it was given up to
:14. Murray before the death-of the late Lord Stair,
'without a delivery of the promissory notes ; still, how-
ever, it was the deed of the noblidefendant, and the
plaintiff would be entitled to recover. There was no
desireto detain the notes when the bond was satisfied.
Mr. Sanders proved the fact of having the bond in
his possession, and delivering it to 4lr. Murray.
Mr. SCAttLETT, for Lord Stair, said his_ noble
client was not to be bound by any other contract
than that he actually made. Mr. Murray. had not
been engaged in gambling transactions, but he re-
ceived bills accepted by Mr. Dalrymple, which were
given as a security until the amount could be paid.
The noble defendant was surprised to find the notes
in possession of Mr. Murray. He was not prepared
to pay the amount, and. as necessity had. no lay,. he_
stated to his attorney that he was willing Mr. Murray
should have the amount, if be would wait till after
the death of Lord Stair. He made the writing, sx hick
was not to operate before the death of Lord Stair...
Secondly, the promissory note.; were to be delivered,?
up. Would any man of common sense hive giVeo
up the bond without the notes? The condition of
the bond had, however been violated, and he con-
tended the plaintiff could not recover.
The LORD Cuszs AMUR, in his charge to the
Jury, said the cpiestion for their consideration was,
whether the deed' was delivered with an express con-
dition ? If they should be of opinion i; was delivered
as the defendant's deed without condition, although
some stipulation was made that it should remain in
the hands of the attorney, still, whether it was deli-
vered tip or not, his opinion was, that it was the de-
fendant's deed. If it was delivered up without no-
tice, still it would be his deed.---The Jury found a
verdict for the plaintiff.

NEGLIGENT DRIVINO.
CULTERWELL D. RAW'S AND ANOTHER.

This was an action brought by the plaintiff, who
is a master tailor, to recover from the defendants,
who are contractors for conveying the Mail to and
from Portsmouth and London, compeniation. ht da-
mages for an injury sustained by him in coasequence.
of the negligence of the defendants servant. Frorn
the evidence offered fir the plaintiff; it appeared that.
on the 21st of May, 1822, he was an outside passen:
ger on the Mail from Pcirtsmouth to London, which'
came up with the-Nelson opposition coach at a place
within about ten miles of Petersfield. The guard'
sounded his horn, and the Nelson was &tering off to
allow the Mail to pass; but the coachman of the Mail,
in attempting to pass before the Nelson gave sufSci-,
cut room, upset the coach, in consequence of Which.
the plaintiff's leg was fractured. He was taken into
Ilan inn called the Seven Thorns, where his leg was
set, and where he remained for a considerable time
at a very great expense. In about two months after
this accident happened, the plaintiff was walking
across the room on crutches, when he slipped, and'
again fractured his leg in the same part, which ocea•
shined him additional expense, and the leg was now
shorter than the other. _ _

Mr. Seawater, for the defendants, trusted that the
Jury -would take into consideration the contract into
which the defendants had entered with the Post.elfice,
and by which they were bound to cane" the mail
within a certain time. Such a crane= made the
servants of the defendants most anxious not to. make
any delay ; and if the unmet et she defendants was
solely to blame for this widest, it smut be attributed
to.' his anxiety to perform the journey within the time
jimited, and not to want of skill or caution; but he
trusted that he should he able_ to prove the accident
was solely 'fittributable to the' improper conduct of
i;be coachman of thit Seism's, and at the tiatetlittAhlF.
tiff ,acquitted the defendants' servant of all Knew ;
but, notwithstanding this the defendants, wishing to
behave in a handsome manner, paid the doctor's bills
and the expenses incurred at-the Seven vit.,
'The Learned Counsel then called the son 'Of one of
the defendants. lie swore that his father sent him to
the Seven Thorns •to see that the plaintiff was pro=
perly attended to; and itt a conversation which" hit
bad had with the plaintiff, he • admitted that. the
'coachman of the mail was not at all la-fault.. •. • •
The guard of the mail-coach swore, that oh the
night the accident eeetwred he heard the plaintiff say
that their coachman was not at all to blame.
The coachman swore that when he attempted to
pass the Nelson there was plenty of room ; but Jest-as
his leaders were abreast of the hind wheels of the'
' Nelson, the coachman of the Nelson began to'Whip
his near horse, and in drawing his hand wand, the
lash touched the eye of one of the leaders of the mail,
which took fright, and in her attempting to get on;
tie coach was, upset.

His Loansrup summed up. The Jurf.nould not
by law take into their consideration the contract en-
tered into between the defendants and the Pirst.efteti;
became if any party voluntarily enter into a•contract,
and that in the performance of that contract ast, injury
be dons to a third portmn, the patty doingtbe iejery
WAS liable to make cornpensati on to the person injured.

If the Jury should be of (-Tinton that the accident
was owing to the negligence of the Jefendants' coach-
man, their verdict must be for the.pltaintitf; or if tlu
Jut y should' bc of opinion that the accident was at-
tributable partly to the negligence of the Nelson
coachman, and partly to the negligence of the de-
fendants' coachman, still a verdict most pass for the
plaintiff, betause his actinn was maintainibloagainst
the proprietors °loath toach ; nut if the Jury should
be of opinion that the /Nelson coacOnlan was alone
to be blamed; then their verdict must be for the
de-
fendants.—'The Jury having retired 'Mt' some time,
found a verdict fat-. the plahttif—Damages 401.

. • AIRY 49.
Tint IRXTZR.
AIMS was an lAdiCtaatt charging the defendant.
with. per-jail, in an affidavit made to support ap-
plication in theCoult of.Xines.fferiettor a new trial.
The action from which the proceeding_ arose was
brought by Mr. Isaac Shannon, against Abraham
Owen and others, assignees of Cohen, a banks opt. so,
recover the value of a vessel, which they Itad.forciblt,
takerroat of Mr. Shannon's pnssession. Mr. Shannon
claimed title to the vessel under a bill of sale from a
person named Phillips, bearing date the 10th of Fe-
bruary, 1815;to which two persons named Baker and
Slow 'were the subscribing witnesses. The vessel had
been previa :sly assigned to Phillips by Cohen, whose
assignees, asserting that the assignment was fraudulent
and Noid, seized the •'vessel by force. Mr. Shannon
. brought an action against then, to recover its value,
and succeeded in obtaining a verdict for ':'3o/. at the
leie SurnMerAssizes for EEsex. At this trial, as.the
defendants were unable to prove the bankruptcy. of
Cohen, the question of the validity of the sale eirl-•nat
arise, since they failed in
.makfag out atty. title its
thiErnselves which could, authorise them to inteiferei.
with the plaintiff's poisession. In the following Mi.;
'clatelnsas Term, they made application f.ir a new trial,
214-obtained a Itule to strew ,cause. In sups' rt of
this:application an affidavit was made by Mr. Baiter;
'whatad been the Captain of the vessel, in outer to
skew that the merits of the case were with the as-
signees. In this affidavit, he stated.that he was pre-
sent at the execution •ot the bill.of sale from Phillips
to Shannon, and that George Slow, one of she sub-
scribing witnesses, was not present ; on this allegation
the assignment of perjury was founded.
To prove this statement untrue, George Slow him-
Self: the subscribing witness in question, was first,
called, who stated that he was clerk to Mr. Baker,
the broker, who negocinted the bargain at the .time,
and at whose house the assignment was executed ;
that he was present.at the ; and that he be-
lieved the defendant was not present. Mr. Baker, his
master,- who was the other subscribing witness, also.
stated that Slow.was present, and wrote the attestation
atashytime, and that he believed Baxter was absent.
The Limo Cuiae Soma intimated that he did
not4percelve in what manner the allegation on which
perjury was assigned was material to the result of the
application for a new trial.
Mr. GURNEY, who conducted the prosecution, ar-
-end that-the statement was material, as giving an
air of fraud to the whole transaction, which it was
necessary for the defendants to impeach. •
The LORD Cuter Jusricn, however, thought that
as no question had been previously raised respecting
the execution of the bill of sale, and as the main ob..
ject of the affidavit was to shew that the preyious as-
signment ef the vessel to Phillips was fraudulent,
thp matter was not sufficiently connected with the'
Bands Of the application to be regarded-as ma-
terial to its issue. . _ ,

Mr. GURNEY declined pressing the case further. '
,The Jory, under the direction of the Lotto Cum
JuaTtos, found a verdict of—Aot Guilty.

. .
DE LXZAV V. PRATT.
This was an action to recover £lOOO, the amount
Of the defendant's insurance on a vessel called the
Nancy. Tim plaintiff is a Merchant at Ilk) Janeiro,
and the defendint en Underwriter at Lloyd's. It
appeated.thatthe plaintiff being desirous of sending
a crergoof goods from Ri&to Lima, wished to make
an insurance, as the coast of Peru was known to be
put in a state of blockade by Lord Cochrane. He
accordingly agreed with the defendant to insure to
the amount Of one thousand' pounds.. The whole
value of the.cargo was £49,900. •The goods were
to be shipped as . English rock, although they were
Spanish. If known to be Spanish, they would have
been subject at once to seizure by- the Insurgents of
south America. • The Captain heard, in the course of
the voyage, that Lima was closely blockaded, and
that it would be impossible to.land. Having rounded
Carpe Horn, he pat into Pisco, on the coast of Peru,
to gain more particolar information. He anchored
under • the fort, and soot * messenger overland to
Liana to state his situation to- the consignees of. the
cargo, and ask advite -as to, the course it would be
best to take. They sent him word that the,-ieforma-,
tion be had received* was correct,ond that in attack
frosts the Patriot fleet was expected. Landing Otte-
foia would be extremely dangerous, and as tbd wea.'
thee would 'be sternly at that season it was not ad.
visehleiti 1-- • the sea. There were three plats to
which he ms go Instil the warlike'positihn of the
la
Patriopts shoe be altered. The ports were Acapulco,
in Mexko; Panama,. ars& St. Blis. The Captain
wood ttbt go to the two first because he considered
the alintiate unhealthy, bat proceeded to St. Blas, al-
thookh *the distance from Lima was very consider-
able. The voyage was long, and thijkoods became
unfit for the port of Lima. She remained at St.:Blas
102 days, with expectation thee the Patriots would
attack the town • and at Ole expiration of that time
o• -*Jain sailed 1,4 t Koo. .It was his intention to
have landed at pftllcie, but the-miss of Lord Coch-
rane's suespres prevented him putting that design in
eseitttion. 'Arriving within•a_few leagues of ilisco,
a thiek -fog preceded him seeing the laud, and he ran
into the port. Soon,idter he landed he was seized,
and throtru into a dungeon—his ship was also seized.
The Faopesty was suspected to be Sautnish, and after
tome judicial inquiry, the weszel was conderone4 as a
lawful prise, The action was brought upon the above
fatts to the amount of insurance for which the de-
fendant had sobsaibed. ..
MT.IIARRY#TT, for the defendant, admitted that
his client knew the coast of Peru was blockaded at the
time he subscribed the policy, but his objection was
that be did not bow the real state of the cargo. He
, did not know that the goods were Spane.h property,
under the appearege ,o 1 English packages.
Had the
uodorwrieers know-A. that fact they' must have con-
. eluded dust sending out such goods to Lima, N A:a

sending . the same .to be condemned. becklitt4,
blockade of Lord Cochrane" vials ji:iient" the bfii• .
•, . a.
teaching that port wit.nout'unuerg4ning a• stitct setrOt •
Fitt' Captain, hi"vert might'-l1:3" gomf.lo some
'Other post than St. Lilts, tvlvte it was impessiLle to •
remain with advantage. The Learned Counsel also
Considered thertmning into Pisa): in . the Cog,. Iwo.
gence, which released the underwriters.. The Captain'
knew the state of Peru, having lefrLimion'atcointl.
,of the danger which he apprehended. ) .
Mr. MA [MYATT was proceeding, .% hen .
The LOCI) CHIEF JUSTICE said—" I think i
-question will he, whether the. Jury consider a '''''
of eight months a i easonable delay, and whether ..
Londerwriters are li•thle for so extensive a risk mg*
that delay;—lastly, whether the 'Captain, knowingi •
the state of the whel~ coast of Peru, ought •not- to
have sent a messcnzer before the second landing er
risco, to ascertain whether his fears were realized!
before he attempted to go on shore?" .
The Jury here observed, that they were of opitiidot
'the *delay was unreasonable.
*The Loan Cu iEr Jusnca asked nr". Scariest wiie.-
ther he-could avoid being called?
... -Mr.SCarite:TT found himself obliges! to submifitic
nonst• it, and the pl Anti fl was accordingly nonsuitel '
1 ' COUAT OF COMMON PLEAS, MAY gi. :

• TIODOMIN V. WESTON. ;
• bir:Serjelilt VationaN.itatetl, this was an act*.
on the warranty of a horse. Tbe.borse had been tht-,-
property.of a Gentleman of fortune, residing our
Peterborough, from whom the defendant purettsoi
it about the end of February last: in-the amniotic,.
anent of the en,lting month -the -plitintiff•porefunit
the horse from the dcfenclant,7autder a wearanty,
die price of fifty guineas., The hero had beep a.
gently once or twice, and is a very short timieroiett
to be cempletely onsound; klipg an ossificatitiite
the fetlock:lona of the off toft,kg.
The puiclaiSiand- wiryaritY-were proved. • •
Mr. Sauttl.:—.l saw the horse on the igib Marti
last, and. on examining. the outerbranch of the see.
' pensary ligament of the off foie leg, near the fetlock •
joint, I observed a callosity formed; this is a cos,
aequence of previous' iittlaninte titan ; if the injare
were recent, there would be a general fulness and
heat in the whole joint ; thiS was a chronic dismal
joint ; the horse was in the same state lest week as in
March ; when the disease is not very extensive, reit
would make it:appear better, but on the &Weser:
tion in carrying weight, the horse would go lease
again. This disease must have existed berate Mr.-
' Hodgson purchased the horse
Cross-examined.— I saw the horse about ten data
after the purchase, and again last week. Horses are
very liable to injuries in that part by a twist of the
foot; still, however, I think the horse wAs diseasedin
that joint before the Bth ; if the horse hid been led
up from Peterborough without any weight. on his
back, the part would not have been more injured; a
little gentle exercise, without cal rying weight, is often
,beneficial to a horse.
Mr.,Serjeant PEW. addressed the Jury for tbede.
fendant, and three witnesses proved that they,had
ridden the horse before the purchase by the plairnit
and that he then. appeared petfectly sound.
Mr. Edward Coleman, Pinfessor to the Veterinary
College, wasahea called, and said, I first saw..the
holse on last Monday ; I. found the off fore leg,-
larged on the -outside of the fetlock joint; the ea
largement is an increased ossification of that bona-
Ite.nding a little waybp the ligament. It is so sab•
vious, that' any person: the least acquainted with
hOrses musopeicetve it; it• is impossible to say haw
long it has existed; it might have existed for years,
:but on the facts sworn to this day, I think it veald
not have existed when the horse was purchased; the •
man who • shod the horse might not have perceived
the injury, though the inflammation might then have ,
beep in existence, as the smiths attend to nothing but
merely putting on the shoe.
•Cross-examined.—l think the iniury-morc likely to
have arisen from a blow than a strain ; at the timeuf
the injury there must have been tendetness, and per-
haps Loneness apparent.
Re-examined.—lf the part, in that state, had been
pressed upon, the horse would have exhibitedaofee
symptom of weakness.
By the Joooz.—l should not have formed std
opinion on the 24th of March, because it is impte-
sible to. state the time required for the progress *fa
suffocation in every case; its progress is by no means
regular; it sometimes proceeds with greater, dad
sometimes with less rapidity.
Mr. Justice Peet having summed up,
The Jury, after-a few moments' consultation, give
a verdict for the plaintiff—R.:images, 521.10 s—for the
horse, and 71. 10s. for his keep since the porelnitt•

BIBTIIS.
May 19, at Earsdoc, thovitrat tjo Err. DetirfWatheasa,
•
jet a.m.
.]flay 19, at Whim, the Ladyof Archibald Mootiomarfilhir
*a daughter. • - .. • •
7.-at Etrasht,etio Lady of Lieutenant-C*lmq porno*,
of tho Rile Brigade C.B. and K. St. A. of a sogr.. .
.4. • iesnree.-
DIED.
May 23, very suddenly; at SiOn-hill, Bath; jggfl,,.
Eq. many vears in the East badia Compaq's eerifetk
March 14, at Sierra 'Leone,. Ger* Mat Zekh, Elq.ahlf
isnot' Gar. Sir Gant-lEoth, Bart. R, N: •
May 22, at Nairn Joan Gunn' latf: Sheriff foisegaiet d
that county.
March 27, at Freericitstr, New Itnimwilrek, agid MO'
General George TkrAl4l.4-99:rersor of d
. . .•
province.
At Madras, on the Mt December bbiritfomas Banta, lit
Regional,

of Coxiodge,'Nerthitinberlasid, M tbe 11th .
.of Madras Native Infantry. '
May 12, at !Tattoo Manat,"Thstarfes-shire, Mrs. Mary EWA
relict of the. ltev. Robert Hood, D.D. fora sly
Hanover-square Chapel, Newcastle. •
Last week, in. the Overitate, Duss4oi, tkiwidOse Ifitivh
the advanced a of 103 teary.

Al A l 1.-&—TIIIIMINkiIe- -, • e '
Alia ens , A"A i; 'VP:
DuNin 1 0 France . •0 f ,
Waterford - 1 0 Hambirgls i' • gr. -
G tieT 114/ and henry 0 0 Flanders -• 1 • ill
1-i-thon '- • 0 Male , 0' •r,
Holland 1 0 Gettenbstegh ~ 0., ke
A merica 0 0 Brazil o
. Ori
• ,
RENAL TZTA ELS CHICUMSTAWCIL .--• Tofterday, there wall
single Mail doe et the Post-office; and the Maib Hour
and llonand, which were not due dlttithirsetnibitsistele
were delivered before Two • o'Cleck.'—'lllif steriplats-1•O
only a Gurrust,4ldail due. •• - •

:?

:UGH WATfiltat LON nom 1:1i1OnleTtl."400441
Mcrning • - • A •-r.ilitpir tits'/'!

Aftrrnoott

. •

LONDON: Prlntisl sad published I
PLlce,

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