The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1853-01-11 00:00:00

PRESTON AND WATSON,

BRENNAN AND OTHERS v

OF LIVERPOOL,

Sr R,—The Defendants having, under the signature of " Fair
Play," (a name which, perhaps, they guessed would have been
a perfect diszuise) published and circulated two letters, in the
latter of which they charged the Plaintiffs with " palpable
falsehoods," and the High Court of Chancery with having
given a decision decidedly contrary to the evidence, and with-
out' rea,ing the affidavits, it is right to state, shortly and con-
secutively, the facts of the case.
The Plaintiffs and Defendants are co-owners'Of the Screw
Steamer " Phcebe,"—the Plaintiffs of 52-64thland the Defen-
dants of 12-64th shares. _

An agreement, dated 20th February, 18511, was entered into
between the owners, appointing Preston and Watson Brokers,
Agents, and Ship's Husbands of said §hip, irrevocably subject
only to the following proviso:7

'' It is further agreed that sh43Uld three-fourths of the
owners find that Preston and Watson, as Ship's Husbands or
Agents, have committed any gro4 act of negligence, or fraud,
in their capacities as Ship's,H. usbands or Agents, said three-
fourths of the owneis, in point of value, shall, provided their
decided and positive disapprobation is expressed, in writing,
from caprice
to the said parties, amVprovided they show the committal of
discontinuing
any such ignorant orifraudulent act, as aforesaid, prejudicial
them, which expired in
ot or theio te owners,res t,
they a n
tdbt osviitda
IT 1 tmhveey
thea e npootwactingtheir services, as Agents, &c."
Preston and Wa.son, accordingly, acted in this capacity, and
accounts to the
owners, in which they credited the ship with a certain definite
OR cCharter
18f5(2)r. al:Yheeayr furnished as eec effected h}'
ii' half-yearlyweekly sum. In October last, at the expiration of the Charter,
the other owners, the Plaintiffs in this case, accidentally disco-
vered that a sum of money, after the rate of X 4 per week, over
and above the amount so credited in the half-yearly accounts
furnished, had been charged to, and received from, the Char-
terers, by Preston and Watson.

The, Plaintiffs, under advice, at once Prepared, signed, and
caused to be delivered, the following notice:—

"We, whose names are hereunto subscribed, being owners
of three fourths of the shares of the Screw-steamer Phoebe,'
of Liverpool, having ascertained that Preston and Watson,
acting as Ship's Husbands, have, in a contract entered into
with Burns and Maclver, received and exchanged one weekly
sum of at 4 sterling to the said Burns and Maclver, which they
have not credited to the said owners, do hereby express our
decided and positive disapprobation, in writing, of such con-
duct, and in pursuance of the power vested in us, by the
agreement of the 20th February, 1551, we do find and declare
such act a fraudulent one, and in direct contravention of said
agreement, arid we do hereby, in further exercise of said power,
discontinue the services of the said Preston and Watson, from
henceforth, as Agents, or Ship's Husbands, or in any other
cap city," Bsc. &c.,
This notice offers to buy their shares, and appoints Captain
Brennan to act until further arrangements.
Immediately on the receipt of this notice, dismissing them,
Preston and Watson possessed themselves of some of the
Machinery of the vessel which had been sent! to an Engineer's
Yard for repairs, and refused to restore them; whereupon this
suit was instituted for the purposes of restraining Preston and
Watson from further interfering as Ship's Husbands or Agents;
of compelling them to restore the Machinery; and generally
to open and surcharge their accounts, with the .e 4 a week.
And, on the 4th December instant, the Court granted an In-
junction to restrain Preton and Watson from further acting as
Ship's Husbands, Agents, or Brokers, of the ship "Phoebe,"
without hearing Plaintiffs' Counsel in reply, and in giving
judgment, made the following remarks:— .The Defendants
could not possiby be justified in concealing or keeping back the
weekly £4, or applying that money specifically for the purpose
of remuneration, without the Plaintiffs' consent. The Defen-
dants' conduct was, in this respect, not open, not direct, not
straightforward, not warrantable in any men intrusted as
Agents with the interests of others; and, that it was therefore
such as to justify Om Plaintiffs in objecting to the continuance
of the Defendants in the character or employment of Ship's
Husbands, Agents, or Brokers; and in requiring them to cease
from acting in any suoh capacities, we are, for every present
purpose, satisfied."
The Court hesitated to interfere, on this day, with what was
conceived to be the peculiar province of the Court of Admiralty,
by granting the further Injunction to restore the Machinery.
They, however, did express their opinion on its detention in the
following words :—" The Defendants' course of conduct in this
respect appears to us, at present, to have been inexcusable ;"
judgment of the Court concluded in these words :—" If you
find any difficulty in the Court of Admiralty, perhaps we shall
have the pleasure of seeing you here again upon this."
Proceedings were forthwith instituted in the Court of Ad-
miralty; some doubts arose asto itsjurisdiction over Machinery,
and it was also ascertained that by its forms it could not grant
relief until a comparatively distant day.
The case was again brought under the notice of the Court of
Chancery, anti on the 13th instant an Injunction was granted,
ordering the restoration of the Machinery within four days.
The Court, in delivering judgment, said—" Independently of
that, there is before us, on the affidavit that has been produced
this day on the part of the Defendants, and is to be filed, an ad-
ditional proof, if additional proof were wanting, of breach of
duty, and abandonment of trust, namely,—not merely with-
drawing the Machinery from the place where it had been
deposited for the purpose of repairs, but withdrawing it before
these repairs were completed, for the single purpose of obtain-
ing an improper possession, to the unjust prejudice, and undue
advantage of the partners of these Defendants. Their conduct
appears to us, as far as the evidence before us goes, to be
without apology anti without excuse and it would be indeed
to be lamented, if there was no jurisdiction in this country
capable of remedying such Flagrant Injustice."
It is true these judgments and orders appointing Captain
Brennan Manager, and dismissing the Messrs. Preston and
Watson from their position as Ship's Husbands, Agents or
Brokers, and compelling them to restore the Machinery, are
merely interlocutory. The Plaintiffs, however, feel no appre-
hensions, and having thus, from authentic accounts, given the
short history of the case to the present, will not enter into any
discussion with Messrs. FAIR PLAY, Preston and Watson, hut
fearlessly abide the issue, expressing their regret at being
forced by the charges of falsehood, so unsparingly made by the
Defendants, to trespass so far on your columns.-1 am, Sir,
your obedient Servant,
ARTHUR SMITH, Solicitor for the Owners.
Gloucester Road, Regent's Park,
London, 2Sth December, 1852.

" WHAT are the only two letters of the alphabet that
have eyes? A and B, because A B C (see) D."
• - -

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