Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1840-04-02
Common Pleas.
Before Judge lngliss.

Common Pleas.
Before Judge lngliss.
THE STATUE OF QUEEN VIcToRIA.-James b.
Stout as. Francis JPeiis.-The plaintiff in this
was the young American sculptor, whose statue of
Queen Victoria, created such an excitement among
the cognOscenti about year back, and the defen-
dant is the master and owner of the schooner Benja
min b. Bigelow, trading between this port and Bos-
tou; and the action was brought to recover a com
pensaton in damages, for the loss of the Plaintiffs
statue, which was Knocked into pieces board that
vessel. The damages were laid at $4,000.
1t appeared that after the Plaintiff had exhibited
this specimen of the fine arts at the Stuyvesant In
stitute, he received overtures to proceed with the
statnc to Boston, and in the month of July last his
father went to the defendant, and told him that he
wanted to send the statue on board his vessel The
defendant replied that he should be happy to take
charge Of the work, as it would be honor to his
line Mr. Stout, Senr then said that he would
bring the next day, but that he uncertain whe-
Their it would be carried down by eight men, or
be brought on spring cart
This was nearly all that Mr. Stout recollectcd to
have been said by either party, and he could not
say that any one was present, except old negro
who appeared to take no interest whatever in the
| matter. The next day the statue taken down
| on spring cart having been first packed up in a
| large conica The cart was backed against
the schooner, and the Captain, who was present,
| Immediately gave directions to the mate and part
of his crew, to get it shipped. When they had got
the sings the case, MIR. Stout, asked if the
rope strong enough TO which the defendant re-
Piled IN the Affirmative and the sings
but afterwards altered at the request Of the cart
| man and the plaintiffs father. The Captain then
took hold of the guide, aud it was got over the
conbing Of the hatch safely but when it had been
lowered about two feet, the sings elongated, and
the unhappy statue of the virgin Queen fell, with
great force, into the hold of the Yankee schooner
When the carman saw the destruction, he said
there did mt | tell YOU ! my words have come
true" This was the plaintiffs account of the agree
ment with the Captain and of the accident.
II was also in proof that the statute composed
Of Plaster of Paris, ochrc, and water; that the
terials cost from $3.50 TO $3.50; that the plaintiff
occupied nearly ten months in its construction,
and that after its completion he destroyed the
del The plaintiffs counsel also offered 10 prove that
a gentleman of this city had offered $4,000 for the
statute to take to Europe, and that the plaintiff had
suffered pecuarily, IN consequence of the breaking
Of his work, as he was necessarily unable to exhibit
il. This was the plaintiffs case.
For the defendant il was set up that he was not
liable a a common carrier, because he had made a
special agreement with the plaintiff agent, in which
the latter took the responsibility of shipment and
transhipment That the statue was of no intrinsic
value, and that all the damageit had received might
have been repaired at very trinng cost That adj
hitting the plaintiff to be liable a carrier
he could only be liable for the cost of REPAIRS and
that he could not be mulcted of any sum which the
plaintiff might suppose he could have made by the
exhibition Of the work.
To prove the first of these allegations the test
mony of Capt. Harding, which had been taken de
bene four days after the accident, was read.
This witaess deposed that he knew Capt. Wells, the
defendant and called TO him on board the schoon
err, which lay Coentes slip, Sunday in July
last While they were sitting together reading the
papers, and talking OF matters and things in general
the plaintiffs father came board, and told the de
PENDENT Of his desire to ship package TO Boston.
Stout said IL statue Of one Of the Royal FAM.
w. and then said the witness, 81 was all attention"
The defendant told the plaintiffs father that plain
tiff must get il on board for the defendant knew
thing Of such articles, and would not be answerabe
for than its a transportation. The plaintiff
must not OILY come down with, and assist in putting
IL in the hold, but have Il secured in such way he
might deem necessary, and the plaintiff or his agent
must be the wharf and attend TO the landing ofthc
package. The mate Oft the schooner also swore that
the sings altered To suit the views the plain
tiff's agents, and that neither himself the Cap.
tain, disputed their directions, although the former
certain the sings were altered from right To-
wrong
To sustain the second allegation. three young
American artists called, named Frazee, Brack.
EFT and Leonitz, who seemed 10 set low value on
the statue Of Quccn Victoria; said il was pas
ter of Paris affair and that il mi ght have been repair
ed alta little cost, and BY any tyro in the art.
These young gentlemen underwent very rigid
cross examination. but they stuck to their opinions,
however hypercritical they may be deemed. This
was the defendants case.
To rcbut this testimony, the plaintiffs counsel
called the Rev. Mr.. Shredder, Mr. Fowler, the
phrenologist and some other critics, who declared
that the statue only TO be compared 10 the pro-
ductons Of Phdas and Praxilites OF the ancients
and Nollekis. Chantry, Westmacott, &c. among the
moderns, and one learned Theban, said that as Sir r
Chantry would probably charge thousand pounds
sterling for such work, why the plaintiff ought TO
recover much. The plaintiff : father was also
recalled, but he could not remember Captain Hard
ing being board the schooner, rsr any such con-
vcrsation as that &c ntleman had sworn 10.
After the counsel on either side had summed mp
his Honor charged the Jury that the defendant would
have been clearly liable from the time he applied
the force Of his vessel, either manual hanica
to the package, provided no special agreement had
been made. On that point they must decide first,
for IL Capt. Hardings statement was true. then the
master Of the vessel was not liable. II, however,
the jury should be Of opinion that special agree
mcnt had been made, they must look calmly at the
value Of the wsrk as the production &c young art
list, but leave any calculation anticipating profits
out of the question. They must lock at the possib
Ity Of repairing the statue, and take into their
sideration the testimony that point from other |
articles which were before them
His honor also took able and perspicuous re- |
view of the testimony, and told the Jury that, nthe
captain liable 90 respond in damages, they must
look at the work and IL IL capable NJ repara-
ton, for if so they must only muct in such liberal
but not not ruinous sum would cover the cost /
thereof II was entirely an accident, and such cas-
ualtes could neither be at all times foresesn nor
avoided