Star.
London, England, 1821-07-24 00:00:00

LAWIntLLI.GT,.VCS;

COURT OF KING'S BENCH, JULY ex.
SHEPHERD V. lIAIN.
This was an action noon the warranty of a ship.
The plaintiff purchased from the defendant, for
£2300, the good snow Fortitude—warranted copper
sheathed and copper fastened. After the vessel had
made a voyage to the %Vest Indies, the owner disco-
vered that she was not, throughout, copper fastened;
.and accordingly brought his action.
It appeared that the Fortitude was advertised for.
public sale, but bought by Mr. Shepherd upon pri-
vate contract. The printed bills described her as
" copper sheathed and copper fastened ;" and to be
bought " subject to all faults."
The SOLICITOR-GENERAL denied any legal warranty.
Mr. Justice BEST thought that the printed condi-
tions amounted to a sufficient warranty.
The SOLICLTOR-GENERAL then defended himself
upon that clause in the conditions of sale which ren-
dered the purchase " subject to all faults."
Mr. Justice Bssr.—That would be " subject to all
faults" not especially provided against by the condi-
tions themselves.
Several ship-owners were called, who considered
the Fortitude to be a vessel part iron, and part cop-'
per fastened. The plaintiff was on board the ship
before he purchased it.
The SOLICITOR-GENERAL submitted that the clause
" subject to all faults," would cover the partial defi-
ciency of copper fastening proved in the. present case;
and relied upon the case of " Bagleyhole v. Walters,"
in-which the late Lord Ellenboroogh decided that
" subject to all faults" covered any defects, provided
the seller used no undue artifice to conceal such defects.
Mr. Scatmerr cited the dictum of Lord Mansfield
in the case of " Schneider v. Collins," that there was
no difference (as regarded a purchase) between a sel-
. le?s stating that which. he knew to be false, and his
.stating that which he did not know to be true.
.• Mr. Justice BEST thought that the plaintiff was
entitled to recover. In " Bagleyhole v. Walters" there
had been no distinct warranty. In the present case,
the words "subject to all faults" certainly would not
cover the absence of that particular quality which
the former part of the conditions expressly provided
to exist. Verdict for the plaintiff—Damages 'cloned.
RAYNER V. OODNIAN.
This was an action upon a policy of insurance.
The risk was upon a cargo of wheat, from Wi,heacli
to Wakefield. At a pitrtkular point of inland navi-
gation the master of the vessel (the Neutral) found
that the canal up which he was sailing was about to
be drained ; and, accordingly, he looked out for a
safe mooring place.. Unfortunately he placed himself
over some sunken piles : as the water fell, the ship
took the piles instead of t!,a ground ; and, in the end,
she was completely scuttled.
The question was, whether the accident, as it stood,
did, or did not, amr'nt to a stranding?
Mr. SCAIILETT submitted that where a man in-
tended his ship to take the ground (unless he was
compelled to form that resolution by a peril of the
sea), such taking of the ground did not constitute a
stranding. If the Neutral had been, in law, stranded,
then half the ships which lay in the River Thames
were stranded twice in every twenty•four hours t for
they took the ground at every els:, tide. The da-
mage in tl,c present instance (Mr. Scariett concluded
by submitting) arose from an accident, not from a
peril of the sea. •
The Mater of the Neutral said, that when he ar-
rived at a certain lock in the river, he heard that the
w..ter would Within a few hours be drawn off. Ile
placed his snip upon a spot pointed out to him by
the lock-keeper. Ile did not know whether his ves
sel would take the ground or not, because he did not
know to what extent the water would fall ; but he
thought that (in ca-c she did take the ground) she
would take the ground most safely upon the spot
whet e lie mooted her.
Mr. Justice Besr thought, that according to deci-
sions, and according to common sense, there had
been a stranding in the present case. When a man
brought his ship inr.• the Thames, and 7noored het
in a situation to take the ground at every ebb tide,
'then he contemplated the event, and the grounding
was his own act. It was evident, in the present case,
that the Master of the Neutral did not, wleit he en-
tered the Wisbeach river, propose to run his ship
aground, but he was compelled to do so by the
drawing off the water, an event of which he had no
previous notice, and over which he had no possible
controul.—Verdict for the plaintiff—Damages £2OO.
COURT OF COMMON PLEAS, JULY e:.
DAVIS V. THE BANK OZ LNOLAND.
The plaintiff in this case, Mr, Horatio Davis,
sought to recover the value of £lO,OOO Bank 3 per
Cent. Consolidated Annuities, and £75 per Annum
Bank Long Annuities, transferred by the Panic un-
der a fictitious Power of Attorney, to which Captain
Davis, the plaintiff's brother, had forged the plain-
tiff's name.
The defence relied upon was, that the plaintiff,
having withheld the commurication of the fact of
his brother's forgery from the Bank for a considerable
time after it had come to his knowledge; and having
received certain sums of money from his brother,
which it was contended were part of the produce of
the sale, whereby he bad adopted or sanctioned the
transfer, had conducted himself in such a way a; to
debar him of all right to recover in this action. It
appeared, amongst other circumstances, that on the
day before the next dividend, after the transfer, had
fallen due (in January, 1820), the plaintiff received
£l5O from his brother, which was the precise amount
of his dividend on the £lO,OOO Consols ; and on the
next day he called at the Bank and drew £2O, the
amount of a half year's dividend on £BOO Navy 5
per Cent. Annuities, without apply inrfor any other.
The defendant's Counsel insisted that it was manifest
front this that the plaintiff was then aware of the
.transfer, and only drew the £2O, conscious that that
was all to which he was entitled. In his answer,
however, to a bill of discovery filed by the defen-
dants, the plaintiff swore that at that time he had' no
knowledge of the forgery, and merely drew the EW
as having occasion for that sum to make some pur-
chases at an auction which he was going to attend.
But he admitted, that on the sth of March, two days
after his brother had been taken into custody for cora-
mitting a forgery on the. Messrs. Drummond for
£6,000, he called upon him in Giltspur-street COmp-
ter, and asked him, " as he had been committills

forgery upon strangers, if lie had meddled with his!
property ?" to which he replied, " that he had taken
the £lO,OOO Consols, and £75 Long Annuities."-
-On the 7th the brother escaped from the Compter in
the disguise of his servant, previously to which, he
gave the plaintiff an order on his bankers fOr what-
ever balance of his remained in their hands, and
which, amounting to. £23, he received. The next
dividend fell due in July, but the plaintiff made no
application to the Bank until Septerater, when he
wrote a letter from the country to Messrs. Marsden,
his Brokers, stating, that in consequence of his mo-
ther's protracted illness, occasioned by the-shock she
had received, he was prevented from coming to town,
and would therefore thank them to prepare a•PoWei
of Attorney for the purpose of receiving the divi-
dends due upon the stock (specifying it) in the Bank
in his name. In reply to the Broker's answer, in-
forming him that there was no such stock in the
Bank in his name, he wrote back to say, that he had
given no power to any person to transfer the stock in
question, and he therefore hoped the mistake would
he rectified. Upon this the denouement took place.
These were the leading circumstances upon which the
defence was grounded ; and it was argued, that by
the suppression of the forgery when it came to the
plaintiff's knowledge, the Bank had been precluded
from taking measures to have the brother secured, or
to have recovered the property which had been lost.
having therefore, as far as he was able, prevented civil
responsibility, and obstructed criminal justice, the
plaintiff had forfeited all claims to remuneration.
The Learned JUDGE in his charge said, that before
he proceeded farther in this very singular case, he
should observe, that the Directors of the Bank had
done right in bringing it before a Jury. The situa-
tion of the plaintiff was greatly to be lamented : for
through affection to his brother, he had declined
making the disclosure of his crime; and that affec-
tion, if' the defence preiailed, would ruin hint. It
was admitted by the Counsel for the Bank, that if
this were a common case of Stock transferred by
forgery, without the plaintiff's knowledge, he would
be entitled to recover. And here his Lordship felt
himself bound to state his opinion, in order that the
parties might make what use they could of it here-
after ; which was, that if there had been a suppression
of the fact of the forgery on the part of the plaintiff
for a length of time, no matter what his motive, or
whether the defendants received any injury through
that suppression or not, he was not entitled to re-
cover. The first question for the Jury, then, was—
When did he first obtain a knowledge of the transac--
tion? Was it in January, when he received £l5O
fioni his brother, the precise amount•of his dividend,
the day before it fell due, and on the next day drew
but £2O from the Bank, the dividend arising from
the Navy Five per Cents.? If he had then known it,
and he received that £l5O from his brother as his di-
vidend, that was evidently an adoption of the trans-
fer. But even if there were no adoption, supposing
him to have known it then, his giving no notice of
the transaction to the Bank until the following Sep-
tember, would, in his Lordship's apprehension, de-
prive him of the right to recover. In his answer, how-
ever, he denied that he had at that period any know-
ledge of the circumstance. But then, did he know
it oh the sth of March ? The conversation stated in
his answer proved that he did. Had this been a'
stranger, instead of his brother; it would have been
his duty instantly to have given the Bank notice; for
v.lio can say, that if the Bank of England knew that:
thi6 man had committed a forgery upon them to the
amount of £IO,OOO, they would not have taken more
effectual means to secure him ? and a feeling towards
his own brother, however amiable, did not alter the
legal effect of the case. But the suppression did not
stop there; for he made no communication of the
transaction till after that mockery of writing toMessrs.
Marsden took place in September. His Lordship's
opinion, therefore; was, that by this suppression the
plaintiff had debarred himself of the right to recover.
The Jury, without any hesitation, found a verdict
for the defendants.