Star.
London, England, 1803-03-04 00:00:00

TKILLVICII 0. CDILLIIIIO.

This alto was an &Zhou on a polity of infurance
named into fo long ago as Feb. 2, ma, before
the commencement of the late war. l'he policy
was on the iltip Malabar, and her cargo, at and
from the if es of France and Bourbon, in the Eon
Indies, to her port of difcharge in France, which
was Toulon. Previous to the commencement of
the voyage, and during the condo of it, they were
informed that the Emperor of Germany, the King
of Prullia, and King of Sardibis, were carrying
on war againft France; that Great Bartels' was
arming with great rapidity, hot that Spain was
perfealy quiet. This induced the Officers of the
Malabar to carry her into the port of Cadiz, on
the t 7th of March, 1793. Though Spain had not
&elated war againft France till the std of March,
El:c v were detained there,and their (hip and cargo,
of the s aloe ofao,cool. were: condemned as prizes.
As this Ls:mance WAS fur ill: beucat of ccruna

!fag of Franck, Out alinn could not protect'
without the content of the Underwriters, till ma
was reftored. Towards the beginning of the wai
his Mitjefty had ranted his licence,authnrizingthe
plaintiffs to receive the money; and in confequence
of that two of the Gentlemen on the Policy, Mr.
Sheddon and Mr. Ward, thinking this a fair and
conicientious demand, voluntarily paid their tub
feriptions. And Mr. Glass thought, after the Tell
of the Gentlemen who had had the intereft of this
! money for ten years (unlefs it was fealed upall the
1 time in a bag) and after they had teen one ahior.
very lately tried on the fame Policy, where the
Jury found a verdia for the plaintiff, and where an
application had been made to the Court of King's
Bench to fet afide that verdia, and that application
had b,,:en refuted; after all this, Mr. Gibbs thought
it might have been reafonably expelled that the
other Underwriters would bavegiven up the contell
and have paid their fubfcriptiuns. This anion,
however, thawed they were of a different *pinion ;
and to be fure they, like all other men, were en-
titled to (land upon their legal rights in a Court
of Jullice. Their defence was, that the Malabar
had been guilty of a deviation, in going into the
port of Cadiz.
Mr. Fournier, the Firft Lieutenant on board, on
being examined by Mr. PARKS, proved the prin-
cipal fah. of this opening, and alinnft in the very
words in which he delivered his evidence on the
6rf trial.

Mr. Easeier, after jullifying the conduti of the
Underwriters is defending this anion, faid, the
tingle queftion to be decided was, whether their
going into Cadiz, which mutt be admitted on all
hands to be a deviation from the prefcribed track
of the voyage, was juftified by any necetflty, and
whether that deviation was made for the general
benefit of all concerned ? He faid, the principle,
in order to render the deviation juftiftable, was
this—the danger to be avoided muff be a danger
not contingent and remote, but near, impending
and imminent. It was clear to every man who
looked at the fads and circumflances of this cafe,
that there was no fuch danger here, and therefore
the deviation could not be Juflified. If the Jury
fhould think it jullifiable in thiseafe, it would go
to juftify every cafe of deviation; and, in fad there
could be no fuch thing. He admitted that the per
font on board the Malabar ailed bona file; they
aged honeftly, and to the bell of their judgment ;
but it was a weak and a foolifli judgment. He
wifhed the Gentlemen of the Jury to find a fpecial
verdict, as this was a caufe of the greateft moment
to his clients, as well as to the commercial world
at large. If they found, in this cafe, that the
peril was impending and imminent, he fhould not
argue the cafe. But he thought it was impollible
to fay they had ezercifed a reafonable and found
difcretion. _ . _

Lord ELLENIOROVGH, in his addrefs to the Jury,
obferved, that if they were fatisfied thefe perfons
had ezercifed an honeft and reafoaable judgment
on the fads which then appeared before them, he
thought the deviation jufiiiied. Men were not to
run into the lion's mouth ; but a deviation mull
be for the benefit of the general concern, and mull
not be undertaken in confequence of a light, Ca.
pricious, or foolifb judgment. If the deviation had
been founded on a rearonable and honefl judgment,
it was excufed, and the place to which they had
deviated was incorporated as it were into the line
of the voyae. His Lordlhip direßed the atten-
tion of the Jury to the molt material parts of the
evidence, as they applied to this point, and gave
it as his opinion that they had ezercifed a reafon-
able and honeft judgment on the taet, then within
their. knowledge. But if the Gentlemen of the
Jury fhould be of a different opinion, and fhould
think they ezercifed a weak and a foolifh judg-
ment, they might find that by their verdia.
The Jury withdrew for a few minutes, and then
found a verdil for Plaintiff for 7001. the amount
of the Defendant's Subfcription.