Star.
London, England, 1801-12-26 00:00:00

Nr!::Til V. TOM: k.

SERJF T Ilfsv flitted the cafe fe,?. the Plain-
it It was an aCtiott for a compentation for the
ijary the Plaintiff hail fun:lined, to confequence
tie ill-treatment V 1 h ich the Defendant had, con-
tent° contra°, g;vcn to eight hot fes width were
ammiued to his care, at 25. 6d. per week each,
a proprietor of fait muffles in the Ifland of
Candy, on the coal of Eire x.
It was proved by fevcral witnt Fe:: that thcfc
limits were taken down in decent condition, to
Cady in March that they travelled 40 miles
that day, and that on their retain in June WI,
diet were nut capable of travelling more than
&teal miles a day ; and from the evidence of a
kr. Good, who had covenanted with the Plaintiff
taparchafe four of thofe horfes, and was prevent-
ed by the fituation to which they were reduced by
the falt marthes, it appeared that all the froths
Item extremely lean in May, like fkeletons ; that
the.peflure was inadequate to the fullenanec of
the number of homes upon it—not lefs than 40,
and that in fat it was unequal to the fupport of
EN2f.e •

Mr. SrAptANT CoeviLL, for the Defendant,
ttnanentei on the evidence, and regorged the
Fitt net to be inticz:lceci by the ftrong twcaiing
'f for he conl,l
then 7, th,t ;n lod known the
etolagell, oflnti:i.e, illy 7:-.o;::r:uli.ty
eride.ze. In thi:: e•:!.2 : was inartited i4.i.t, ,
tat f;:e .•••Loily of me (t ti::
inicfres; that not a wade grais or a gaol)
was to he leen or; the inarflies of Ics yht.nt, Wab
!IR founded in laic, ; anti matly linefes beloi g.
tog to other perfous, kid thrietn on tl-,rfe 01es;
I°4 that thuft t:,• Haintill would, if lie had
ft* taken them av:ai lii loon, al.: if tl., y had not
veto Y:ith fonie ineilrable
Several perfons accordingly proczd that their
woks had recovered ar,d fattened unJtr

of the Defendant, hu•, none teal•l f, o tut t!.zy
knew any thing of the horte, of the Phil:tiff, or id
the marfhes on which they were f-d
—except two
fervants of the Defendant, who fwcic that he, fo
far from being inattentive to thefe horfes, had
them for a month in the al-rev-yard; in order to
prepare them for the marthes, at a time too when
araw was very dear.—Veichka for the Plaiatiti,
Sol. damages.

COURT OF !CMG 'S MINCH, DF.C.23.

BLIGHT V. PSG'.

This was an a(tion for the purpofe of recover-
ing damages for the amount of the freight of a
veffel of the Plaintiff, called the Favourite, which
the Defendant undertook to provide a cargo of
barley for, at a place called Licbau, a pal t of the
globe which, the ATTORNEY GENERA!. i. 141, for-
merly belonged to Poland, but which the late
Emprefs of all the Ruffias took, no doubt, fur the
benefit of all concerned in it, and annexed to her
Empire, in rather a fummary manner, however ;
and the objea of this aftion was, he laid, to re-
cover in damages the lots which the Plaintiff had
fultained in confequence of the Defendant's not
providing this (hip with a cargo, according to the
contraft. This veffel failed on the 'Bth of June
to this place called Liebau. Fifty-two days before
the time of its failing, namely, on the 26th of
April, N. S. a general prohibition took place
again(' the exportation of grain from Liebau. Be-
fore that time there had been a partial prohibi-
tion, leaving barley free ; but the general prohibi-
tion extended to barley, as well as to every other
fpecies of grain, and therefore, from that time, it
was the fubjc.t of prohibition. Of this prohibi-
tion, he apprehended the Plaintiff and Defendant
to be equally ignorant at the time of the agree-
ment. The Favourite, which was the (hip in
queltion, went out in ballaa for the purpofe, and
for the purpofe merely, of bringing home a cargo
of barley from Liebe .% to her port of delivery,
which was Berwick upon Tweed. Now, if any
difficulties occurred in procuring this cargo, cer-
tainly it was the bufincfs of the Defendant to get
over it, for he had concerned with the Plaintiff to
provide the • effe.l with fuels cargo : certainly it
was out of the power of the Plaintiff to do it : all
he could do, was that of being ready at the time
fpecified to receive the cargo on board. He was
to wait with his fhip twenty running days, and
after that ten days on demurrage, at 31. per day.
The Defendant, he underftood, intended to rely
on the language of the Charterparty, and meant
to fay, that he, the Defendant, was prevented from
executing his contra& by the rearaint of Princes.
That might be an excute for the Ship Owner, and
loch as would fall upon the Underwriter, but could
be none for the Defendant, who had engaged by
the Charter-party to freight the veal. -Paling
this by, he lhould proceed to the (latement of the
cafe. On the t?th June the Captain gave notice
to the Freighter's Agent at Liebau that he was
ready to rake the cargo according to the terms of
the Charter-party ; the anfwer was, " We cannot
furnifh you with any cargo, for a prohibition has
attached on the exportation ofaßarley ;" and, in-
(lead of finding the cargo, the Defendant's Agent
told the Captain, "you may go and look for a cargo
elfewhere." To which the Captain replied, " I
came here for a cargo of Barley, and if you do
not provide me with one, 1 molt day here my lay
days and demurrage days, and then return home
again in ballafts" The Captain feeing the diffi-
culty to which the Agents of the Defendant were
chive') by the prohibition upoti the exportation of
the article of which hew as to have his cargo,offe red
to carry any cargo they could find foi him, fay-
ing, " I am ready to do that which is molt con-
venient for you," lint chuting to nand upon the
ltriet letter of the contraEt—fince they would not
give him a cargo of Barley. But they Paid, " No ;
go to any other port and try what you can get
there ; try for lonic other freight." The Captain
Aced for an indemnity to his owner :I- lie went
to any other port. No ; they would not give him
that either ; upon this the Captain (laid all his lay
and demurrage days at Liebau, and then returned
in hallati, the chin ges for which were 4861. which
the Plaintiff claimed by this Asition, betides de-
murrage, &c.
The- lois was admitted, and the faa, appeared
upon depofitions, which were agreed to be read.
Mr. Glass addrefled his Lortlfhip oat the point
of Law, ‘4 Whether the claufe taking notice of the
reftraint of Princes, was not an excufe for the
Defendant in this cafe ? The reflraint of Princes
and Ruling Powers during the laid voyage always
excepted.' Certainly this was during the voyage
from Liebau home, although it was not during
the voyage to that place. It was mani:eft that the
Plaintiff To under(lood it, for, by his declaration,he
Rated that he was at Liebau, ready to seccive the
cargo, and theref.ire this conflrinit ion of the Plaintiff
was applicable to the whole voyage, and the qua--
tion would then be, Whether the reltraint of ruling
powers, was not as good an excul: to the (hipper
of floods, as it would be to the owner of the veffel ?
This was a queltinn of his Lordchip, and therefore
the Jury would excufe him for addrefl'ing himiell
entirely to his Lordfhip in that part of the cafe.—
He (hould, however, be perfenly fatislied, as in-
deed he ought to he, with hi,. Lordfliip's Judg
ment, which ever way it &add be pronounced ;
and he confelfed that the imprefrom which this
point feemed to make on his Lordihip, made him
leis confident of it than he othcrwifc (honk! have
been—but he thought the cafe by no means ieft-
ed there. It was not a mere queaion whcalier the
Defendant was not eroded upon the tine ci n•
ill-Olio's of this Claufe ?—but, Whether lie was
not jultiG. d upon the general nceeflity of the cafe?
And the cpieftion then was, Whether the Captain
could do that which the Plaintiff fi itel in his de-
claration, and which was neceffary far the purple
of the :Oka that he Mould fate, namely, that the
I Captain was ready to receive the cargo ; for tin-
; Ids lie was ready to receive it, the Defendant
could not be culpable for rot being ready to pro-
. vide it. Now this prohibition of the etportation
of grain, not only prohibited the Defendant trom
• putting on board the flip any barley for exporta-
: lion, t likewile prohibited the Captaii., who was

ttsc.vet,t of the riainviff, from ',akin% away any
fu.. :irtiele. Now he hbmitted tit at t:;;S aaion
could rot be ma:•-• tined by the Plaintiff, unl:-.ls he
was in.: conditi,n to perform that which he fail
b hi. decLtraion he was ready to do, namel,
to carry home this barley from this place ; now
prohil,:tion was equally obligatory ri.• thole
who were to carry away, as on thofe who were to
!hip this artier: fur e Fortation. Both flapper and
shipowner were prohibited. Neither of the ,parties
could do that which *as contraCtedi both being I
retrained by tit; t,i t power, the one from put-
ting on board, the other from cart Ong away this
article, and tlierefuie this was to he
taken as an excufe f,r both. The Plaintiff could
not do that wiskii Pe had engaged to do, and
which he had dated in his &Ll:nation he was ready
to do, namely, that lie wrs ready to bring home
a cargo of barley from Liehau ; it was not true
that he was ready to do this, foi . : could not have
brought it home, if the Defendant had put it on
board the veffel. The fame prohibition affeEled
both the Plaintiff and the Defendant. On there
grounds he fubmitted, that the Defendant, in this
aaion, was entitled to a s'erdiCt.. But if his Lord-
(hip thought otherwife, and that the Plaintiff was
entitled to a verdia, thcn.the queftion would be,
What damages fhould be given ? and upon that
point his Lordthip would unite him for addrefling
the fury etclufi'mly, as he did the Bench, on the
queftion of Law. As to the charge for demurrage,
there was no pretence fir it.
Lord KEN VON. I think you are delivered in
this cafe from dcmuri-age, for you told the Cap-
tain on his airiv.:l, that he might depart. At leak
I am inclined to give way to you in that part of
the cafe ; becaufe, as you told the Captain he
might depart, fOr that you could have no freiht
for him, there could not be any necefEty for-his
flay. But upon the other point, I am, at prefent,
decidedly of opinion againft you."
Mr. Gives.—. 6 We fay the performance was
impoMble, for that we were uncler the reilraint of
Princes." _ _

Lord Ksavom.—g, This brings my mind to the
confideration of a principle laid down a great
while ago, and which, therefore, is now pretty old
law, and what I have always received as fuch, and
may be found in Coke Lit. ; wherein I remember
reading, that if a man flipulates with another, that
he thin make a Fe:spm./ to another, and that he
is prepared to do it, but he is prevented by a third
perfon who will not make Livery and Seizin, that
(hall not deliver the party who undertakes to make
the Feoffinent ; it is otherwife if the party himfelf
refufes, for there the perfon undertaking !hall be
delivered. This is old and very well underftood
Law : flag principle of it is clear; it is this—if a
man undertakes what he cannot perform, he frail
anfwer for it to the perfon he nndertakes to. 1
with, whenever I can, to apply the principles of
Law to the regulations of commercial dealings,
when they come into queftion in a Court of
for I do not know hoW I can do better. When
this rule cf Law was laid down, Commerce was
inlignificant in comparifon to what it is now.—
since that time queftio'ns of commerce have
branched out in a manner much beyond my power
to find out roles for its guidance, and therefore I
am cootinually obliged to apply to Gentlemen in
that box, for affillance• in the adminitiration of
Judice in commercial concern., nor can it be ex-
peaed that rules laid door when there was& little
commerce, Mould be wide enough to reach all
gild:lions which a multitude of commercial events
have needEirily introduced ; but whenever a com-
mercial qucliion conies before me, to which a fet-
tled-pllii, iple of Law applies, I am happy to ap-
ply that principle. I am happy alto, to retie& that
the opinion I ant now giving, may be reformed
by the Count, if it be erronerus. The cafe on the
demurrage, I think, is with you, Mr. Gibbs. The
other part, I think, is againft you. I think there
is no pretence for the charge of the demurrage,
becaufe it appears by the depofitions, that before
the Captain entered the port, the Defendant's
agent gave him notice, that he could not furnifh
him with any cargo, as the prohibition of export-
ing barley was then in force."
-Mr. Glass then proceeded to addrefs the Jury
on the quellion of damages, and contended that
they thould be very fmall, inalmuch as the Captain
Was informed, and indeed he knew, immediately
on his comin3 into the port, the defendant could
not have this cargo of barley; he fhould have
gone immediately to fume other port to feek for
tome other cargo, inliead of which he waited the
whole twenty of his lay (las s, and ten of demur-
rage, when ire knew, perfeAly well, it was a fruit-
lets flay, for that he could have no cargo there.—
Inflead of which lie (laid all his 3o days, and then
returned to Berwick upon Tweed, in banal!, mak-
ing the molt of the potlible charge upon the De-
ft ndant. The damages were always in the hands
of the Jury, and he fubmitted in this Care they
thould be (malt, Inojsing, however, that his Lord-
Blip would refervc him the point of law.
Lord eNvoa.—.. Can I flipOlate any other
bargain for the parties, than that which they had
made for therm:dyes, and Which appears in the
Charter party ?
One of the Jury raid, Suppnfe the Captain
had gone to another pot t, and the (hip had been,
1011, %that would h.;ve been tine cenfequence ?
Could the Allured recover the lnfitrance ?"
Mr. Oleos raid, it was certainly for the Jury,
under Irk la:lA:4's dihtftihn, to fay, what the
damages were to he ; and his Lordthip would fay,
%artier, in pn:nt of law, they ought to give the'
amount of the whole height?
Lord KF %YON laid, that the Jury need have no
direftion, and h- was afraid they could not have
much ali=lt.lnce from 1. to ; bit he was afraid of '
tire precedent of loweriti7, the amoant of the dama-
ges, which atofc from the non-i etforrnance of a
contrail, the In each ot whi,h was flatcd at agiven
fun, as was the cafe here; ar, ' a:. to tire difcretion
of the Captain to PP to anoietT port, the obfer-
vation which e'..ne Iron' the Jut, tux, was quite
decifive.--It would be wild anal the Jury
wonld do more harm than they could repair, per-
haps, if they weir t: lay dawn a rule, even in the
calculation of darns diKerent from that which
the parti!: ::•ala..ed thert.t:lves.

, VerdiEt for the Plaintiff.—Damages 4!?.?';&.—tt.?
demutra,ze being deduCted.
M. G:etts faii, the point he put to
I Court, if his Lord(hip would leave it to him, w ,
" Whether, upon the conttru,Rion of ;he Chat:
party, the prohibition was not equally ohliy:il,ls
on the Deftnctant as upon the Captain of theilii-r: r.•
Lord Ktiirma Ind he hail entered this i
note book.—" Mr. Gibbs Wilted that the priiliiii;-
tion delivered the Defendant from any obligati i.
to load the (hip, and that therefore the Plaintiffs
are not entitled to freight."
Mr. Ginar..—" In as much as the Plaintiff's
Agent, the Captain, was not capable of receiving
the goods, any Lord."-
Lord KEN vom Paid—" Yet," and obferved that
Mr. Gibbs might move for a new trial.

DECEMBER 24.
HUGHES O. LORD ORTVENOR.

This was an adion againlt thc Noble Lord, for
non-delivery of lead, according to contra.l.
The declaration confilled of 3o counts, and
Rated to contrads between the Plaintiffs and a
Mr. I.angworthy, as agent for Lord Grofvenor.
The evidence proved the contrads as laid in the
declaration.

Mr. ERSKINE, for the Defendant, Rated, that
the very fubjea matter cf this aaion was deter-
mined in another anion, in which the prefent Plain-
tiff was examined as a witnefs, and itatcd that he
had made the contract as agent for perfons of the
names of Bailey and Walker. Thole two perfons
brought actions againß Lord Grofvenor, which
were referred to Mr. Vaux, and he had awarded
damages againft the Noble Lord. Langworthy,
the agent, as Rated, of Lord Grofvenor, abrcond-
cd, and went to America ; he returned back again,
and died in 1798. Thofe contraas were Rated to
be made in 1794 and 1795, but while Langworthy
lived, the prefent Plaintiff made no claim ; and,
now in the year z Bot he for the Brit time came
forward with the prefent demand.
Mr. Vaux was called to prove, that the prefent
contraas were the fame as were the fubjea of
former attions referred to him, between Bailey
and Walker, and Lord Grofvenor. It was pro.
pofed by Mr. Gibbs to leave the whole to Mr.
Vaux and Mr. Barnwell, as arbitrators, and at
length acceded to by the other fide.

DEC. 17.—. WRIGHT V. LAWS.
Mr. ATTORNEY GENERAL Rated that in this Care
Mr. Wright, living at Norwich, had purchafed
four pipes of wine of a perfon named Sheville, for
which he paid him Sol. in money for one pipe,
and was to ive him a certain quantity of linen in
barter for the other three. The wine came to
Yarmouth, configned to Mr. Wright, from the
houfe of Meffrs. Brewer and nude, in London,
with whom Sheville had contraEled for the pur-
chafe of it. The wine, when it came, to Yar-
' mouth, was received by an agent of Mr. Wright's ;
in the mean time, it was difeovered or thfpeAed
by Melrrs. Brcwcr and Flude, that Sheville in-
tended to fwindle them, and they had got the
wine from Wright's Agent, under the idea that
they were flopping it in tranpu, giving him an in-
demnity to induce him to give it up. He con-
tended the law was clear, that when a thing was
delivered to a party or his agcan, IL was no lon-
ger in tratitu.
Having called a Witnefs of the name of Board-
man, who proved that he received the wine as
Wii6ht's Agent, and warchotifed it with the De-
fendant, becaufe he had no convenience himfelf,
Lord KEN wax raid, this was a clear call. of de-
livery. Here was the corporal touch, an expref-
fun which he once ufed, but which he wifhed
drummed out of Court.
__

Mr. EasuNS Rated, that though nominally
Counfcl for the Defendant, he was Counfkl for
Meths. Brewer and Flude, who had been fwindled
out of the wine by Shcvillc and Amphlett, two no-
torious Swindlers belonging to a.gang who had
made Norwich the feene of their depredations.
Having Rated his cafe, it appeared that he meant
to impute fraud to the Plaintiff, by means of an
inadtnifiible Witnefs ; and having no other, the
verdia mutt of courfe have gone againft him. At
length it was agreed among the Counfcl for the
Parties, that the Plaintiff Ihould take a Verdict
ouiy for the Rol. which he had paid for one pipe;
and that he fhould be indemnified againft any
claims to be made by Sheville for the linen which
was to have been the confideration for the other
three pipes.—VerdiCt accordingly.
DEC. 18.-ICIINEIVER V. CAMPBELL.

This was an action upon a Charter Party, of
Affreightmcnt, by the Owners of the (hip llelifa-
rims, by which they covenanted that the fhip, be-
fore a certain day, (hould proceed from Shields to
Gibraltar, there to ut.load, re-load, Etc. The
Freighters covenanted to load the (hip as fall as
the Owners could receive on hoard, and the breach
aligned was, that the I)efeudants a:a not pot a
cargo on board, by which they were prevented
from failing with convoy, and were delayed. No
evidence was given, but a verdift taken by cordent,
fulled to a reference to afcertain the damages.

Mr. plass, proprietor of the Royal C'rcus, re-
{peal-ay inform. the NobiEty and Gentry, that
the Circus is now open, for the infirtr;,ion of La-
dies and Gentlemen in the polite and ufcfnl art of
Riding gracefully and plral:intly, and the proper
method of gu:dir.g and tnairiging the llortc ;
truly defirable, and abfolutely neeethry, for ail
who either ride for Rciloration or l'refeivat ion et
Health or amufemcnt ; for which putpoie Ise has
engaged tutors of well-known abilitict, and !fag
experience, at the above-mentioned Academy, as
well as in the army. Young Gentlemen, dot tog
the Chrillmas Holidays, have an cliptirtar.:ty of
being taught as above, with the addition of the
Broad Sword Exercile ; as alio the Mc of tlie
Dumb l'-11x, fo much rect.mmor.d..:l by the t~-
culty,
t: .r the benzfit of youth. lakovite any Nn.
bleman is Genti:man, of an ao.:ve turn, may be
inflrofled in any c.f the Feats of Aelivity,
exhibited at the above place. And alto thc.fe N.•
tended for the army, may be taught the ufe of the
Manage, and in a (lot- t.me made perfatly capa-
ble of joining anr Regiment of Cavalry. N. B.
Roams kept v.i:h good ire., for the accorrar oda •
d tics cf :he pc..,,