Star.
London, England, 1822-12-17 00:00:00

TOOTMACHZ AND EAR-AMIK

D- , - •
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-14.flts4s.
Ocopetted , 4tia.
98reettog ...a Company' to
certain SnitSO:Mr. Baiter to- defray • the expense
the pairesigolif sixty Lascars to Indies out of funds in
the Coniissifshands. • • •
Mf.:119/Po4 now.moved, on the part of the plain..
tiff, that so much of the order of the Court as di-
rected the payment of themoney to Mr. Baxter by-the.
East India Conilsiiiy; for- the passage of the'Laseats,
ilse discharged ; that it be declared that Mr.B.ixter is,
entitled• to' 'no. compensation. for sending. the Lascars
back to India; and that the defendants be directed to
pay to the plaintiff the sum of 6651. beihg the•ainotint,
of the wages of the Lascars advanced by the plaiotiff.:
The order of the Court had been granted under the
Understanding that it atras the intention of Mr.Baatet.,
to ship the Lascars off madiately to India; brie, so
far frons.heeiog complied with this undertaking:oe
Lascars were now in England, anti not
fOil several weeks. Mr. Baxter had: stated his-intelall
flied to ship the' men off by the Asia. This vessel ltd
only just arrived in port to refit, and several weeh
must of course elapse before the vessel was ready to
sail. A vessel called the Melpomene had'hist -week
sailed for India, and Mr. Baxter had positively re-'
fused the plaintiff's offer to give the Lascars a pas-
sage in that ship. The consequence was, that the
men still remained in England, and were so irritated
by die manner in which they had been treated, that
they were in a mutinous state, and Mr. Blanchard
was in great dread lest some injury should be done
him by these desperate melt. It was *ell known what
characters these men bore, that it was their constant
practice to carry knives about their persons, and that,
when once roused, their anger was not easily ap-
peased. It was, then, under these-circumstances that
the plaintiff applied to the Court to discharge its
order. With respect to the wages which had .been
advanced by the plaintiff, he had been induced to do
so in consequence of a very severe and threatening
letter which had been sent to him by Mr. Clarkson,
a very active agent, who had acted on behalf of these
seamen. This letter was dated the 14th of October,
and Mr. Clarkson there stated his intention to seize
the ship Partridge, unless seven months wages were
advanced to the seamen. On the 19th of October an
agreement was drawn up between the plaintiff and
Mr. Baiter, under which the former agreed to ad-
vance the money. The plaintiff now applied for the
repayment of this sum, as Mr. Baxter had not chosen
to comply with his undertaking. The Lascars still
continued in -England, and the plaintiff would be
made liable to pay the wages now accruing, owing
to Mr. Baxter's non-compliance with the agreement.
The VICE-CHANCELLOR did not see how he could
interfere to compel the repayment of this money to.
the plaintiff, because it would be a relief against the'
agreement entered into between the parties upon an
interlocutory motion. The dispute inter alia re-
spected a sum of money in the hands of the Eas.
India Company, and he could only apply a certain
sum out of those funds in the hands of the Company to
defray the passage of the Lascars to India. It would
be in the power of the plaintiff to call upon Mr.
Baxter, by a supplemental bill, to pay him the ex-
pense of the Lascars remaining in this country.
Mr. HORNE said Mr. Baxter had completely broken
his faith with the parties, and he was entitled to no
compensation taken from the funds in the hands of
the East India Company. It was on this ground he
submitted his present motion to the Court.
Mr. Heatn appeared as Counsel for Mr. Baxter,
and observed, that many of the facts of the case had
been grossly mistated by the other side. The fact
was; that Mr. ,Blanchard was the only one to blame
in the whole transaction. With respect to the 'ship
Melpomene; it was distinctly proved by the affida-
vits, that there was no room left in the vessel for the
Lascars, and this was the reason why they did not
take their passage in that ship. The plaintiff had
answered the objection of want of room by saying—
" Oh, these black fellows (meaning the Lascars) will
lie about the deck anywhere." Was this proper treat-
ment for men in this inclement season? and was Mr.
Baxter not right in saying that they should not sail
in that ship ? It would have been the height of bar-
barity if any other course had been taken. These
men, who had been stigmatised as little better than
murderers by his Learned Friend, were many of
'them men of education; and could speak four or five
'European languages: nor did they carry knives about
diem, as had been most absurdly imagined. He con-
tended that the order made by the Court was a highly
just one, and-ought not to be discharged.
' The VICE-CHANCELLOR thought, that if the words
" without prejudice" were added to the order for the
payment of the money-by the East. India Company,
it would bedoing justice to both parties.
Mr. Howie would have no objection to the money
being paid when the ship was actually ready to sail,
and the men on board: The order might for this
purpose be suspended, and every object would thus
be answered. •
The Vic a-Cti ANCELLOR then directed that the order
for the payment of the money to Mr. Baxter be sits-
pended, with liberty to Mr. 'Baxter to apply by affi.
davit when the seamen were on board, and the Asia
was ready to; sail ; and that the payment should be
without prejudice to the ultimate i ights of the parties.,
otteAl? fu.:ugAD•
Mr:.l3ett,• in this case, tnOvecf the Court to direct
ail issue. to retry the cause in the Court below. This
was a question- of legitimacY•tried before Mr. Justice
'Btu-rough,' ifs the (;cart of Common. Pleas, and the.
Jury decided in.favoUrr Of the legittrnacy of the party.
'The'PresS4Neintatiois was founded Upon an alleged
%legal Wisi* Centmi;ted *by'. the Learned Judge jut
summing op to the Jtiry. It would be necessary that
fuivished :with the Le.irned.
•.1444.4i-Oziettis:tilei tried the wiser ond whim his ;Lio-
b

_ .
Mr. Serjeant LENS stated the case to the Jury: It
would appear that, in consequence of very bad wea-
ther encountered after leaving Honduras, the Robert
was obliged to put into the Havannah. There the
Captain endeavoured to get her repaired: but on ex-
amination it was found that she was so much da-
maged that it would cost more than the value of the
cargo. The merchant to whom the Captain had
consigned the vessel, had the ship and cargo sur-
veyed four times, and after these surveys he thought
it was best to sell it, fqr the benefit of all concerned.
The sale of the mahogany produced Antic three
thousand pounds. A great part of it was dasnaged
by salt water, and would if kept be liable to be
worm-eaten. It would have taken six months to:re.
pair the ship if there were means of doing so. The
person
.to whom the Captain had consigned had riot
those means, and therefore he could not have done
anything else than sell the cargo. Under these Cir-
cumstances, the Learned Serjeant submitted that his
client was entitled to recover for total loss.
The Captain. died at the Ilavannah, and the mate
took the command. He was now called, and proved
these facts. Qu his cross-examination, he admitted

that several vessels were at Honduras at the time.
Two Captains refused to bring hvme the mahogany.
Witness came home in the ship. of one of these Cap-
tains, and brought some of the mahogany with him,
but was obliged to cut some of the pieces to get
them down the hatchway. Witness did not ask all the
Captains at Honduras to bring home his cargo. •
Three witnessesswere called, who proved that part
of the mahogany was damaged by the salt water, and
would have becotpe worm..eatent,il kept long.
Mr. Serjeant Vaunn.ati, for the defendant, cen-
tended that the plaint': had no claini for,more than
an average loss ; that the cargo had been sold with-
out necessity ; and that such .necessity should Ise
dearly proved before the plaintid. could recover% It
was held by the late Lord Eltenboraugh, that., a
greater blow could not be given to.the commerceof
the country, than admitting the principle that Cif)-
! tains could sell cargoes without the strongest caseuf
necessity. Nothing but the.-most urgent necessity
could justify, is Captain in selling in such cases. kle .
then, called two Csptains of ships who were, at; _
vannal at the time of this transaction, who proved
that 'they would have been glad to have brought
the malngany to England, but they. had not. hien
applied to for that pun pose.

.- ; ..

, Mr. Justice Buipoopin atimme.t.up the evidence,
And the ary 1-9und a
,Vertikt, the plainCiff loran
averaE,c lu.s only, • L, • Ir"

7.. ;