The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1842-04-05 00:00:00

BROWN V. BRADFORD

Mr. WATSON opened the case. It was an action for debt,
for the proceeds of a policy of insurance, and the defendant
pleaded that he was not indebted ; he also pleaded a set off
for work and labour done, and also pleaded a special lien on
all which issue was taken.

Afr. DUNDAS said tauthe appeared as counsel for the
plaintiff, Mr. Robert Brown, a merchant at Brigus, in New-
foundland. The defendant was an insurance broker in Lon.
don, and the question for the jury was, whether he, as an in.
surance broker, having effected an insurance on a vessel for
the Liverpool agent of the owner, was entitled to retain the
policy as a general lien for a balance due to him by the agent.
He says that he knew no party in the matter but the agent,
but he would show that defendant knew very well that it was
not for the house in Liverpool that he was insuring the ship,
but for the house in Brigus, in Newfoundland. In 1838,
there was a mercantile house in Liverpool doing business
under the firm of Ferris, Butler and Co., of whom Mr. Fer-
ris was a resident at Bristol, two Messrs. Butlers were resi.
dent in Liverpool, and the fourth partner, Mr. Bulley, was
resident in Newfoundland. At the same time there was a
house in St. John's, Newfoundland, styled Bulley, Butler
and Co., consisting of the same partners precisely. In New-
foundland, in the town of Brigus, there was also a third
firm, styled Robert Brown and Co., consisting of the same
partners, with the addition of Mr. Brown, the present plain-
tiff, who resided out there. In March, 1838, the house at
Brigus became part owners of a vessel called the Mary Anne,
the firm being registered owners of one-half the vessel, and
Mr. hobert Brown of the other half. The house in Liver-
pool, being agents for the house in Brigus, effected an insu-
rance on this ship, through the defendant, a broker in Lon-
don. The letter written to him on March 23, 1839, stated what
he must have known, that the insurance was not effected on
their own account, but as agents for the house at Brigus, and
that Ferris, Butler and Co. in Liverpool, were doing business
as agents for Robert Brown and Co., at Brigus. If he knew
that, then he had no right to retain the policy as a lien. The
firm under which defendant did business, Messrs. Robert
Bradford and Co., was a most respectable one—he had no in-
structions to say anything against it ; this was simply a ques-
tion of law. They insured £741 on the vessel, £1,240 on
her cargo of fish, and £460 on her freight to Oporto, and
this action was brought by the plaintiff for one halt of what
was recovered on the body of the vessel of which be was one-
half owner. The letter to the defendant stated " Remember,
this is a vessel purchased by us last fall for our house at
Brigus." It proceeded to enter into particulars as to the
quality of the ship. On March 27, 1839, the defendant writes
a letter to the Liverpool house. According to the practice
of insurance brokers, he retains the policy and sends a copy
to his principals, with a debit note. The letter stated that
the policy had been effected, and he debited Ferris, Butler,
and Co., for Robert Brown and Co., with £ll2 15s. 6d., the
premium and commission. This vessel subsequently became
liable to a general average loss to the extent of £561, which
the broker would receive on the vessel as well as on her
freight and cargo, but the plaintiff was only suing for his
moiety of what was due to the body of the vessel which was
calculated and admitted to amount to £ll6 3s. sd. In the
.course of- the year 18-10, the house in Liverpool became em-
barrassed and subsequently bankrupt. And about that time
a gentleman named Turner, residing at Truro, being involved
in the partnership's concerns, wrote to defendant, inquiring
about policies, and seeking to obtain possession of them to
indemnify himself. Defendant's answer to Edward 'Turner,
Esq., M.P., stated the nature of the insurance, in which po:i-
cies it did not appear that a claim could be established for
more than he had already obtained, and went on to recount
the expenses which had reduced to so low a sum the recovery
on a general average loss. Mr. Brown also heard what had
happened, and felt anxious to know what had been received
under the policies. To him the defendant wrote sufficient to
show the receipt of the £561, and also that he knew it was
received on account of the Brigus house. It was addressed
to Mr. Robert Brown, which showed that he knew Mr.
Brown was a partner in the Brigus house. He told Mr.
Brown that he had put the £561 to the account of the Liver-
pool house. In his last letter to Mr. Turner, he said not one
syllable about anything due to himself; but, subsequently,
he claimed a lien upon the insurance, and its proceeds for
the balance due to him by Ferris, Butler, and Co., refusing
to give Brown anything. The question, therefore, was, whe-
ther at the time of the insurance being effected he was aware
of the existence of the Brigus house, and that Mr. Brown
was partner, in which case he could not retain the policy on
a general lien for a balance due from the agents.
The ship's register was then admitted, showing Brown to
be half owner of the vessel. The letters were also put in
and read.

Mr. James Henry Butler proved the nature of the partner-
ship in Liverpool, and its failure, and also the other partner-
ship as stated by counsel. Defendant personally knew the
partners in the Liverpool house.
By Mr. kNowLEs.—ln the.Brigus firm Robert Brown had
one half of the house, and the other partners had half—in
the same proportion in the ship and in the firm. The Mary
Anne belonged to the firm at Brigus.
Mr. DUNDAS—That will appear in the register.
There were several other vessels held the same way—the
Jane, Comet, and lanthe. Defendant insured those vessels
also. In 1840 the Liverpool house was considerably in-
debted to defendant, to more than the money received on the
insurance of this ship and cargo. I am not aware that we
were indebted in insurances on the Jane, Comet, and lanthe.
I cannot tell without consulting the books. I have an im-
pression that Mr. Turner is the party proceeding in this
action. Ido not know whether Mr. Brown has anything to
do with it. The Mary Anne was partnership property—pur-
chased with partnership funds, and treated as partnership
property up to the date of the failure. I am not aware of
any settlement of accounts between the Liverpool and Brigus
houses since the failure. The Brigus house was largely in-
debted to the house here.

Mr. KNOWLES.-DOD't you know that the house of Brigus
has been credited with this insurance ?
Mr. DUNDAS objected to the question.
Mr. KNOWLES appeared for the defendant, and addressed
the court on the point of law. The ground of his defence, he
believed, must have been obvious. It was quite clear that
Mr. R. Brown was jointly interested with other parties in
the ship, which was treated as partnership property. His
objection was, that Brown could not sue alone. On no other
principle could he sue but as a partner, and in partnership all
the partners must sue, except for something which one has
done alone. The plaintiff would probably say that the inte-
rest was not a partnership but a part-ownership. The learned
gentleman referred to the case of Drake v. Douglas, in a note
to the case Seward v. Welsh. His opponents might rely on
it to prove that one owner might sue separately for his share
in any interest in a. vessel. But if ever that was law, it was
not law now. It had lost the support of Mr. Baron Parke,
who had expressly s ated that he did not concur in it. In the
case of Halsall v. Griffiths, where the plaintiff was part
owner,—to allow, for argument sake, that the plaintiff in
this case was part owner,—the plaintiff bringing his action on
his third share, Baron Burney nonsuited the plaintiff. And
on motion, Sir J. Parke ruled in favour of the nonsuit, on
the ground that all such actions should be joint, and that a
broker should have his remedy, not against one owner, but
all. Lord Tenterden concurred. But this was a still weaker
case than that. The parties here were not part owners but
partners ; and the parnership being established, all the inci-
dents of the partnership must attach. This plaintiff must be
nonsuited, as Brown alone cannot sue.
Mr. ToNtLnisoN followed on the same side. Brown, the
plaintiff, as partner, was more indebted to defendant, than he
claimed from defendant as part owner ; so that there was no
equity in this action. The instructions from Messrs. Ferris,
Butler, and Co. described the insurance " for us," and said,
"remember it is purchased by us for our house." It was
doubtful to him that any one could maintain an action but
Ferris, Butler, and Co.
The COURT suggested a nonsuit subject to a motion.
Mr. KNOWLES wished to take the opinion of the jury on
the question of fact, whether defendant had sufficient notice
of the ownership of the vessel.
Mr. DUNDAS contended that " to us" only meant to our
order, and that " our house at Brigus" pointed out for whom
the insurance was, and that the defendant knew that the two
houses were different. The learned gentleman then pro-
ceeded to contend that the parties had distinct, not joint,
interests, the plaintiff having one-half the whole interest in
the vessel, and entitled to recover separately.

Mr. WATSON followed on the sane side. The insurance
follows the interest. It is not a joint insurance by the whole,
the parties not being entitled to the whole to divide among
them, but to the insurance, with reference to the interest, as
was well known to brokers. At law and equity there was no
title to the ship, or anything arising out of her, beyond the
register.

The COURT suggested a non-suit, but Mr. DUNDAS re-
fused to accept it, and Mr. KNOWLES proceeded to address
the jury on the third issue, and called on them to relieve the
defendant from a vexatious action brought by a Mr. Turner,
of whom nobody knew anything.
Mr. DUNDAS.—He is member of parliament for Truro.
Mr. KNOWLES did not think a bit the better of him for
being member of parliament for Truro or any of the adjacent
boroughs. The learned gentleman then proceeded to con-
tend that he was entitled to their verdict—which would set
the whole question at rest—to the effect that defendant had
no reason to think that Messrs. Ferris and Co. were acting
any otherwise than'as principals.
The COURT charged the jury. It was his lordship's opinion,
on the point of law, that it was a joint insurance of the
whole five ; and that not Brown alone, but he and all the
other partners should have sued. On the first issue, there-
fore. they must give their verdict for the defendant; on the
second, the set off, on which no evidence was given, and
which was only material as regarded costs, they must find for
the plaintiff; on the third issue they must say whether, on
the evidence, the defendant did or did not know whether the
plaintiff was a party interested.
The jury found a verdict for the defendant on the first and
last itsues, which terminates the action.
MOUNTFIELD V. MOLYNEUX.
An action on a promissory note. Undefended. Verdict
for £212 ss. Od.

NICKELS V. MASON AND ARNLSON AND ANOTHER.
This was an action fir work and labour done. The plain-
tiff was Mr. Joseph Nickels, a sailmaker in this town, and
the defendants were Messrs. Mason and Arnison.

Mr. DuNnAs, with whom was Mr. Martin,—appeared for
the plaintiff, and stated that the plaintiff had supplied new
and repaired old sails for the ship Abbotsford. There was
no dispute as to the bill, which amounted to £56 16s id ;
but the defendants' reply was, that they were not on the
ship's register at the time the work was done. The question
was, whether they were really and actually owners; and if
so, they were liable. The only person, they asset ced, who
was in the register, was Mr. Jonathan Laidwan, and this
was true ; but the defendants were beneficially interested.
Mr. Laidman had since become bankrupt.
Witnesses were called, who proved the work done to the
Abbotsford.

James Nickels, son and clerk to the plaintiff, in his cross-
examination by Mr. BAIN ES, admitted that the only person
they knew when the work was done was Mr. Laidman. The
work was done before November 7, 1839. The bill of sale
which transferred the property of the vessel from Laidman
to the defendants was not produced to the Collector of the
Customs of Liverpool until November 18, 1839.
Mr. Jonathan Laidman stated that he was managing
owner of the Abbotsford ; she was bought in 1835 by Mr.
Bousfield and himself, and paid for by them and other par-
ties, Dixon, R. Laidman„krnison, and Mason. Mason and
Arnison, for a sixteenth each, paid £338; and afterwards a
further sum of LOG 7s 10d each. Her first voyage was to
New Orleans, and the first voyage was a losing one. The
next was a beneficial one, and £1,200 was distributed in the
proportion of £75 the sixteenth. The same in subsequent
voyages, up to March, 1838. [A book was put in, with an
agreement to divide £lOO on each sixteenth of the Abbots..
ford, signed by the owners, including the defendants.] In
March, 18-10, the freight was distributed in the same propor-
tion. This was for a voyage ending in September, 1839. The
account for the next freight was never made up, as I became
a bankrupt. _ _ _

A letter was read from Mr. Arnison, dated December,
1839, to plaintiff, acknowledging the receipt of the bill, and
stating that the owners would take the affairs of the ship into
consideration, and in the mean time referring the plaintiff to
Messrs. Lowndes and Robinson.

By Mr. B AI N ES.—Mr. Arnison is a draper at Penrith, and
Mr. Mason is a bleacher at Eamont Bridge, in Westmore-
land. Neither of them ever took any share in the manage-
ment of the vessel. No one appeared but myself. It was
the same with the Inglewood and some other vessels I was
manager of. I became bankrupt in November, 1840. In
November, 1839, I owed the vessel about £BOO. I now owe
her £4220. Nickel's credit was six months ; but he some-
times gave me twelve or fifteen months' credit. Had had
general accounts sent in to him for that and other vessels,
but could not find them. Had searched for them with Mr.
Banner, accountant to the assignee.
Mr. Du N DAS contended that secondary evidence could not
be taken of the contents of such documents, until better
proof was shown that they could not be found.
The COURT ruled that the papers of the bankrupt being
in custody of the assigaee, the assignee must be called either
to produce those documents or prove they could not be found ;
and that, failing such proof, parole evidence could not be
taken of their contents.
The next document produced was a bill of gale of the ship,
dated Nov, 18, 1839, which witness swore heti been executed

drily two or three' days bei3/44,:e' that date,- in his 'brother's
office. The freight due in September, 1839, was accounted
for in August, 1810.
Mr. BRINES, for the defendant, contended that the only
question was, whether the articles were supplied on the credit
of the defendants or of Laidman. The defendants were
never held out as owners to the present plaintiffs. To make
them responsible, they must be proved to be legally owners;
to make them this there must be a conveyance. It was
specially enacted that no bill of sale passed the property of
a ship, until produced to the collector or controller of the
port where registered. No such production took place until
November Is, after this work was done. The bill of sale
bore date in 1828, but it was not exteuted until 1839, and up
to that time the title of defendants was inchoate; and it was
in Laidman and I3ousfield, who originally purchased the
vessel, or rather in Laidman, who was sole registered owner.
Here neither were the defendants legal owners of the vessel,
nor was their credit held out to the plaintiffs, so that there
was no proof of their liability.
Mr. CROMPTON followed on the same side. There was
here no personal credit—defendants were not legal owners ;
and he cited a case to show that agreements under inchoate
interests to divide profits or convey shares had not any lia-
bility, so long as they were incomplete,
Mr. Do NDAS contended that this was a case for the jury.
What was done was on the credit of the ship's owners, and
the bills were made out to them. There was no pretence for
saying that they were supplied on the credit of the ship's
husband, whether called Jonathan Laidman or Jonathan
Laidman and Co. The defendants had the beneficial inte-
rest. They were the real and substantial owners for whom
the work was done, and who got the benefit of it.
The COURT asked if Mr. Dundas would be content with
liberty to move?
Mr. Dundas refused.
Mr. MARTIN followed on the same side. Laidman first
acted as owner, then as ship's husband, and the credit was
given to the owners of the ship—to those benefitted by the
contract. The object of the registry was not to give, but to
distinguish British property ; and was it to be tolerated that
those who violated the law should take the advantage of the
violation to avoid the responsibility for repairs made to the
vessel ?

The COURT.—There is no law violated. They are not
compelled to register the transfer.
Mr. MARTIN continued.—But if they omitted what the
law enabled them to do, they could not take advantage of
their own omission. The case rested entirely on whose cre-
dit the contract was made ; and the learned gentleman went
on to contend that the cases cited went to prove that, prima
facie, the parties liable were those who were beneficially in-
terested, who in this case, were certainly those who paid their
money for the ship, and were dividing the profits year after
year—and to cite others to show that the legal owners must
be held to be, not those whose names are in the register, but
who have the beneficial interest in the property.
Mr. BAINES was about to continue the argument, when
The COURT suggested that it was useless, as they must go
to the jury on the question whether the goods were supplied
to the credit of the owners or of Laidman.
Mr. BAINES then addressed the jury, and contended that
Laidman was the only owner the plaintiff knew. It would
be a monstrous thing to make the defendants liable. Laid-
man, it appeared, owed the vessel .12-1000, and from their ne-
glecting the registry they could recover nothing ; so that they
would be compelled to pay for what they could not receive.
Besides, the plaintiff had no business to give Laidman these
long credits ; to let him set deeper into insolvency ; and then
send in the bills to the owners too late for the owners to learn
the true state of the affairs of the ship to any good purpose.
The COURT charged the jury. It was always a question
when a party came into court with a fair claim, whether he
was claiming from the party who ought to pay him. The law
said there should be no interest in a ship unless the name
was upon the register. The true test was—on whose credit
were the goods supplied ? The first question was, had Laid-
man any authority frout the defendants to purchase those
sails ? The evidence went strongly to show that he had ; for,
though not owners, they were receiving profits, and employ-
ing him as ship's husband to manage the ship, and to do what
was necessary for the management. If they thought so, ttey
must find for the plaintiffs. There was another feature in the
case, that Laidman managed other ships, and their bills were
sent in together, made out to the owners. The question was,
whether this was not an inartificial way of saying that they
furnished them to Laidman on the credit of the ship.
The jury found for the defendants.
FLETCHER, PUBLIC OFFICER, V. CROSEIE AND OTHERS.

Mr. CROMPTON opened the proceedings, which were e_x-
tremely complicated, almost every defendant having a differ-
ent set of pleas.

Mr. KS7OWLES expressed his fears that the case would be
an extremely long one, there being fifty-three defendants, of
whom twenty-three pleaded. The plaintiffs were the Phoenix
Bank, which originated in the failure of the Northern and
Central Bank, of which the Liverpool branch was found to be

profitable, and was continued under the name of the Phoenix

Bank. The defendants were styled the " British Lead,
Silver, and Copper Mining Company."
Mr. Baines appeared for Mr. James Cooper, of the Isle of
Wight, and six other defendants.

Mr. Wortley appeared for Thos. Wilson, Thos. Brancker
the younger, and several others.
Mr. Seager appeared for two of the defendants.
Mr. Roebuck appeared for one of the defendants.
Mr. Watson appeared for the first defendant in the record,
Mr. Crosbie, who had suffered judgment to go by default,
and who, by statute, was at liberty to cut down the demand
for costs, and to fix the other defendants.
For two of the defendants no counsel appeared.
Mr. Crompton, for the plaintiffs, put in the register of the
Plicenix Bank, and of its public officer, John Fletcher.
Mr. Robert Sheraton, secretary of the British Silver,
Lead, and Copper Mining Company, was examined.
His cross-examination lasted three hours and a half, after
which the court adjourned, one or two of the learned gen-
tlemen declaring that they were " all at sea" in the compli-
cation of dates, parties, and documents, of which no report
can give any idea.

CROWN COURT

-SATURDA