The Liverpool Standard, and General Advertiser.
Liverpool, Merseyside, England, 1854-08-29 00:00:00

SATURDAY,

INSURANCE CASE—WILSON AND ANOTHER V. MARTIN,
AND WILSON AND ANOTHER V. RA.THBONE.—III these two
cases Messrs. Joseph Wilson and Co., of New Orleans, the
plaintiffs, sought to recover from the defendants, both of
whom were underwriters for the ship Cambyses, insurance
upon portions of the freight of that vessel. In November,
1852, the plaintiffs, in accordance with instructions re-
ceived from Messrs. Crane and Co., St. John, New Bruns-
wick, the owners of the ship Cambyses, procured a freight
for that vessel, and accepted from the captain a bill upon
the cousgueos for hisi dikburgemots; iusuriug a sufficient

portion of the cargo to cover the amount of the bill. The
vessel was lost,- and the defendants, with whom portions
of the freight were insured, refused to pay the plaintiffs
the insurance. A verdict for the plaintiffs, for £6O
damages and 40s. costs, was given in each case, with leave
for the defendants to appeal to a higher court. •
DELIVERY OF GOODS—HOWARD V. SIIITIL—ThiS was
an action for the recovery of £lOO 19s. 6d., the value of
goods sold and delivered. After some evidence had been
gone into, it was agreed to refer the matter to a third party,
a verdict being given for the plaintiff, subject to reference
as to the amount.

ACTION ON A CHARTER PARTY—PRESTON AND
ANOTHER v. POWELL.—In this case the plaintiffs, who are
the owners of the ship Giaour, sought to recover from Mr.
Powell, the defendant, the sum of £BOO upon a charter
party. It appeared that, in the month of July, 1852, the
Giaour, a vessel of 270 tons register, was at Monte Video.
At that time the defendant entered into a charter party
with the captain as the agent of his owner, under which
charter the captain was to proceed with the vessel to
Penguin and Jova Island, on the coast of Patagonia; and
having there received a complete cargo of guano, to pro-
ceed thence to St. Pierre, Martinique, or to a good safe
port in the United Kingdom, calling at Cork or Plymouth
for orders. The shipowner was to be paid 255. per ton
freight on the cargo, and was also to share with the ship-
per the profits arising from the sale of the cargo. Sub-
sequent to the signing of the charter-party, the defendant
gave the captain instructions by letter not to part with
the cargo at St. Pierre, Martinique, unless he could obtain
for it at least £5 per ton. On his arrival at St. Pierre,
the captain found that the defendant's agent, to whom he
had been directed to deliver the cargo within the limit
above stated, was dead. The successor to his busi-
ness offered to effect a sale of the guano; but the selling
price being only £6 per ton, whereas there was a duty of
£2 per ton upon guano, and the captain being informed
that in England the selling price was only about £3 per
ton, whilst in New York it was £7 or £8 per ton, he con-
veyed his cargo to the latter port, and there disposed of it.
The plaintiffs received the half of the profits of the sale,
but it was contended that they should receive freight from
Martinique to New York. On the other hand it was
urged that, by sailing to New York instead of to England,
the captain had broken the contract, and that the plaintiffs,
therefore, ought not to charge freight for that voyage.
After some consultation, the defendant agreed that the
matter should be referred to a mercantile gentleman in
this town, and that a verdict should be entered for the
plaintiff for £BOO damages and 40s. costs, subject to that
reference.

STEEL v. BIIGGIANI.—On this case being called, it was
intimated as having been agreed that a verdict should be
entered for the defendant for £lOO damages with 40s.
costs.

DISPUTED QUALITY OF GOODS—STAG AND OTHERS V.
LIORPE.—This was an action for the recovery of £33
9s. 2d., balance of an account of £43 9s. 2d., due for a
quantity of steel delivered by the plaintiffs to the defen-
dant. The defence set up was, that the steel was bad,
and that, when it was sent back to the plaintiffs for that
reason, they refused to accept it. A verdict was given for
the plaintiffs for £3l 9s. 2d.
This case closed the business of the day, and his lord-
ship dismissed the jury, leaving the remaining cases to be
disposed of by Mr. Justice Crowder.

(Before Mr. Justice Crowder and a Special Jury.)
ACTION UPON A GUARANTEE.

NORTH BRITISH INSURANCE COMPA,NY U. LLOYD.—
This was an action brought to recover the sum of £5OO
upon a guarantee which had been given by the defendant,
Mr. John Buck Lloyd, the Mayor of this town. Mr.
Atherton, Q.C., with Mr. Millward, appeared on behalf of
the plaintffs ; Mr. Attorney-General Knowles and Mr.
Manesty for the defendant.
Mr. ATHERTON, Q.C., in opening the case, said that the
plaintiffs, the North British Insurance Company, were an
incorporated body, their chief office of business being in
Edinburgh, but having branch offices in Liverpool and
London. The defendant was Mr. John Buck Lloyd, a
gentleman of the highest social and professional respecta-
bility, who had practised for-many years in this town, and
who had obtained honour, which he had no doubt merited,
the approbation of his fellow-townsmen, and now filled the
office of Chief Magistrate of this important borough. The
action was brought upon an agreement of a guarantee
which was entered into by the defendant and three other
gentlemen, namely, Mr. Ambrose Lace, Mr. P. W.
Brancker, and Mr. James 'Bourne, each of them for the
sum of £5OO, and which guarantee was given by them on
behalf of Sir Thomas Brancker, now deceased. It was
part of the business of the North British Insurance Com-
pany, and had been so for many years, to make advances
of loans on proper security, and amongst the securities
which they were in the habit of taking were railway
shares. In pursuance of their ordinary course of business,
upon application being made to them by Messrs. Townley
and Whitehead, brokers, on the 28th October, 1840, an
agreement for a loan was entered into between the plain-
tiffs and Sir Thomas Brancker, and out of that loan the
guarantee, which was the subject matter of the present
action, subsequently arose. The loan granted under the

agreement was £lO,OOO, to be repaid with interest, at the i
rate of six per cent. per annum, and, as a security, certain
railway shares were deposited by Sir Thos. Brancker, the
plaintiffs having power to sell the shares to realise the !
amount of the loan, and also to demand, in the event of their
becoming depreciated to a certain amount, additonal security.
In due course, the loan would have become repayable on the ,
26th Oct., 1847; but, previous to that time, in the month of
September, the value of the shares deposited had become so
depreciated that the margin of 20 per cent., as per agree-
ment, was found not to be maintainable. Accordingly, Mr.
Douglas, the secretary to the company, finding this defi-
ciency, made application to Messrs. Townley and White-
head, on behalf of their principal, Sir Thomas Brancker,
requiring further security ; and, ou the 30th of September,
those gentlemen notified to Mr. Douglas their readiness to
deposit, on the part of Sir Thomas Bancker, as the addi-
tional security required, thirty Harrington Dock shares,
with power to realize by sale. On the 14th of October those
shares were deposited with the plaintiffs, and the time was
then drawing near when, unless some fresh arrangement
were made,. the £lO,OOO would become repayable. It was
not convenient for Sir Thomas Brancker to repay the loan,
and, accordingly, still acting through his brokers, Messrs..
Townley and Whitehead, he made application to the com-
pany for a renewal of the loan, which, upon certain terms,
was ultimately agreed to for an extended period of six
months. The loan was renewed at the current rate of in-
terest, and Sir Thomas Brancker deposited with the com-
pany his brother's (Mr. James Braucker's) acceptance on
his draft of £2,000, at six months, as collateral security,
to cover any deficiency which might arise beyond the
value of the stock. As a portion of the fresh arrange..
meat, Sir Thomas Brancker wished the company to forego
their right to insist on the margin provided by the ori-
ginal agreement being maintained ; but the company,
on consultation with their solicitors, Messrs. Duncan
and Radcliffe, declined to abandon their right in this ;
particular. On the 26th of October, 1847, the fresh loan
was completed, the conditions being the same as in '
the original agreement, with the exception that interest
would be charged at the rate of eight per cent. The
loan was to fall due on the 26th of April, 1848; but
on the 7th of January, 1848, Mr. James Braneker wrote
to Mr. Alexander Smith, the chairman of the company.
The letter was dated the 7th of January, 1848, and was
as follows :—" My dear sir,—l thank you for all the trou- i
ble you have taken in the arrangement with Mr. Moon,
and I have now to beg your kind intervention with the
North British Insurance Company. We have been making
an arrangement of the guarantees of Sir Thomas's stock,
so as to separate the liabilities and not let them bear too
heavily on any one. He will call upon you with the one
prepared for the Insurance Company to replace my pro-
missory note. [No doubt a misdescription of his accept-
ance.] It is a better arrangement for them, and we trust
that you will remove any difficulty.in the matter. lam
sure you will lend your aid, and that, if necessary, Mr.
Crossthwaite will also assist you." This was the first
suggestion of any guarantee whatever, and it was a propo-
sition solely emanating from Mr. James Brancker, who
was in the confidence, and, no doubt, had the sanction of
Sir Thomas Brancker for what he offered. The company
did not solicit it ; it was no advantage to them, for both
then arid at the time of his death, Mr. James Brancker
was a perfectly solvent person. His draft would become
due in the course of a few months, and it represented
security for £2,000, fully as good as the guarantee. When
Mr. Brancker's letter was laid before the directors of the
company, they expressed their willingness to consent,
provided they had the approval of Messrs. Townley and
Whitehead for so doing ; and Mr. Douglas accordingly
wrote to them on the 17th of January, informing them
of the offer of Mr. Brancker to substitute for his accept-
ance a guarantee signed by Mr. John Buck Lloyd, defend-
ant, Mr. Peter W. Brancker, Mr. Jas. Bourne, and Mr.
Ambrose Lace, for £5OO each. In the afternoon of the
same day, Messrs. Townley and Whitehead wrote to
Mr. Douglas, sanctioning the change of securities, and
the matter was then completed. Shortly after the 18th
of January, the directors having discovered something in
the guarantee, submitted it to Mr. Duncan ; and that
gentleman having considered it, was of opinion that its
validity would be doubtful unless a sufficient considera-
tion were stated on the face of it. He had no doubt that
the gentlemen whose names were attached to the guaran-
tee meant to be bound by it, and that in rectifying the
error, he would only be at the same time consulting the
interests of his clients, the Insurance Company, and car-
rying out the intention of the guarantors. His opinion
was communicated to them, and in the end the guarantee
was withdrawn, and a fresh one drawn up, and signed by
the guarantors on the 14th of February, 1848. It was
upon this guarantee the present action was founded. In
April, 1848, the loan expired, and, as the shares were
daily depreciating, it became necessary for the company
to look after the securities. On the 10th of June the de-
fendant and the other guarantors were communicated
with, informing them that unless the loans were settled it
would be necessary to realize the securities. Several
other communications were made from time to time to
the guarantors, but no objection or remonstrance was re-
ceived from them ; and after a length of time the securi-
ties in shares, which had so depreciated that the company
was left in deficiency the sum of £5,000, were realized,
and now the present action was instituted to recover the
respective amounts from the guarantors. The learned
counsel, in conclusion, commented upon the pleas which
had been put upon the record by the defendant, He said
they could not be maintained either in law or fact, and
more particularly the third plea, which attributed to the
plaintiffs a fraud in the transaction by not fully stating to
the defendant Sir Thomas Brancker's circumstances at
the time they obtained the guarantee.
Evidence was then given in support of the case as stated
by the counsel for the plaintiff,

The ATTORNEY-GENERAL then proceeded to state the
case for the defence. He observed, that though the open-
ing statement of his friend, Mr. Atherton, had occupied
so long a time, it would be found that the question was
one which resolved itself entirely into a point of law, and
that would speedily appear when he had placed before the
court one single fact, which he believed would not for a
moment be disputed. And when he had done that, it
would be for his lordship to say whether, in point of law,
there was a defence upon the third plea, upon the terms
of which his learned friend had quarrelled. He meant
the plea of fraud and misrepresentation, which Mr. Ather-
ton, as a lawyer, well knew was not intended to convey
any imputation in the sense in which the word fraud
generally bore, because it was only a term which the law
used to oxpress that sort of defence which was resorted to
in the present action. The law adopted that term, and
it w UM to signify the keeping hack 0 certain infer-