SUPREME COURT. Civil Side.—Tuesday. September 9. Before His Honor the Chief Justice and a Special Jury. Kerr v. Lewis and Another.

New Zealander, Volume 7, Issue 565, 13 September 1851, Page 2

SUPREME COURT. Civil Side. — Tuesday. September 9. Before His Honor the Chief Justice and a Special Jury. Kerr v. Lewis and Another.

In our last «c published a lepoit of this case, which was as full as it was possible for us to give, considering that the tiial terminated so short a time befoie it was necessaiy toi vis to go to press. The cross-examina-tion of the first two witnesses extended to so very gieata length that it was. impossible to find room for its details. We, however, now subjoin the moat important of it — as bringing ovit the case of the plaintiff — the crosscxamination of the master of the Glencoe. John Liuhwall, (whose exatnhiation-in-chief we published in oui last) on his cioss-examination by Mr. Abraham, on being questioned as to his knowledge of the boxes on board the Glencoe, m.uked JD, stated that he believed they be'onged to Mr. James Dil worth ; did not know whether or not the owneis were inteiesied in them; on the 1 Oth April, while at Itaiatea, he had given up altogether the potatoe ventuie to California; that the Giencoe was a line vtssel, he gave her dimensions in beam at after hatch, distance from after hatch to cuddy companion, and height of buhvaiks ; the lenson of the difference between the amount paid as Ireight by Mi. Kerr and other bhippeis, was because the plain lift' paid his fi eight all in advance ; the coals on boaul weio ship's stoics; had hi ought coals fiotn Sydney, and kept back pait of them (about six or eight tons) loi the use of the ship during the voyjge to California; entiys in his note book weie made by himself. (Note-book examined by plaintiff's counsel). Witness had made the entiy that appeals as follows: 4< Mr. Ken's potatoes, on the 24th, all as good as on the day they were shipped;" this note was not impartially put down ; after the first day's picking plaintiffs potatoes got worse daily , did not see tb.em himself, but plaintiff told him day alter day that his potatoes were bad ; had made two vojag^s to Suhiey bef'oie ho wcut to California; the rcpoits of his cargo horn the Customs' entries, as published in the newspapors pioduced, he behoved to be correct, — the fust trip he biought down 70 tons coals and 900 sheep ; the neit 51 tons of coals and one thousand sheep ; some of the sheep wore stowed below atid some on deck; about 600 might have been cat ried below ; the vessel was not in a dirty mess when she arrived ; some of the sheep died on the passage down ; did not know that his owners were m any gieater bustle to get the ship away than those of other vessels were ; there were coals lying under Mr. Kerrs potatoes ; did not measure the quantity of coals on board j they were stowed where ballast is usually put ; was not prepared to say ivbetber the boxes marked JD, and consigned to him, belonged to Messrs. Lewis, Hughes, and Dilworth ; before the caigo was put in, the coals left on board weie removed, and the hold swept peifectly; this was done fouiteen days before the vessel sailed ; the cleaning was performed by the crew, and superintended by the mate ; the sheep were all out the day after the vessel ainved; dnectJy the sheep and coals were taken out the vessel was cleansed; never remonstrated with defendants for sending cargo before the ship was ready to receive it ; had remonstrated against boats being sent alongside faster than he could take cargo on board ; had never said that Mr. Lewis was in such a state of passion on boaid as to jump on his hat, and that he threatened to get another captain ; did not remember ever having said so, nor of having said to plaintiff that be had felt an unpleasant effluvia, or a scent like hartshorn, in the hold before the vessel sailed, nor of having told plaintiff that he had consulted a blacksmith about the propriety of keeping the coals in the ship, nor of meeting either of the defendants in the street when he was going on that errand — nor of stating that defendant Lewis bad glold him to go ou board and exert himself; would not say wheiher or no the vessel was down by the head after she was loaded, nor that ballast was put an after the cargo was on board; would not say that the defendant Hughes had complained of the hatches being luinbaied up as the vessel was about to put to sea ; witness and plaintiff did discuss the cause of the heat on board, but did not recollect plaintiff say tint if he had known theie were coals underneath, he should have piefened to forfeit his £20 lather than ship in the vessel ; did not lemember saying that he had doults about the coals being the <'ause of heat, nor that delendaut Hughes had complained of want ofnindsails ; he had windsai s made as soon as possible after the vessel sailed ; the island of Itaiaiea is one-third of the passage to San Francisco ; it was very hot theie ; Captain Ilorstly, of the River Chief, came out in a whaleboat ; he formerly sailed with witness in the Triton j he said he was going to Auckland next day via Hapii; on hailing the schooner Lightning lie did not s«y that all the cargo was spoiled except Mr. Kerrs; he said something about coals, but did not icmembei what he said ; the ship got aground at 4 o'clock in the afternoon ; he accused Captain Fleury of getting her agiound ; did not remember plaintiff say anj thing about the stars; witness was quite sober all that night, and so was the mate, but the crew were in a state of mutiny, and pelted him and Captain Fleury with ro.ten potatoes ; did not recollect the ship going aback; saw the plaintiff on deck the next motning, when he said, he wished to go back to Auckland in the Kiver Chief; peihaps he might have said he was disgusted with the pievious night's proceedings, and that his life was not safe , Mr. Kerr said to Captain Horsely that he would like to go back with him to Auckland, but the captain told him, after some conversation with Mrs. Lillewall, that he could not give him a passage in the brig ; the plaintiff did remonstrate with witness for taking up so much time in picking the potatoes, saving it would be bettet to throw the bad overboard and go on with the good ; witness replied that he must go through the foim of picking on account of the shippeis in Auckland ; while at Raiatca plaintiff many times obseived lo witness that if they did not soon go away from there the potatoes would all spoil ; never heard him, plaintiff, say that he would not enter into any arrangement lest it should involve him in legal difficulties at Auckland ; they were 17 days at Itaiatea picking the potatoes under a vertical sun ; had no lecollection of hearing the male sny they might have been at California while the delay was lasting; some of the potatoes were good that were thrown overboaid at Tahiti ; some of Mr. Kerrs were [ thiown upon the leef theie ; some of them were used in the cabin, and they weie veiy good ; he lebuked the steward for cooking them ; witness never sold one ot the plaintiff's boxes. | By Mr. Whitakek: Gave no orders to Mr. Gibson, the agent at Tahiti, respecting the plaintiff's cargo; received no money as the proceeds of it, nor would he have taken any if offered to him ; rendered every as- | sistance to the plaintiff in lespect to his cargo; before I lifting anchor at Tahiti, plaintiff refused to go on to Caliiornia, preferring to return with the Glencoe ; be» fore leaving Itaiatea, plaintiff gave it as his opinion that it would be better to go on to Tahiti, as if they did not get soon there they would have nothing to sell; plaintiff expressed no wish oi desire for witness to pioceed to California ; the money witness wanted to borrow was to purchase oranges with — he had plenty of money to pay cuuent expences, having taken £150 with him from Auckland ; the potatoes weie not in a fit state to keep till the vessel's arrival at California had he proceeded ; the coals in the hold were cooler than anything else on board ; before shipping any thing at Auckland, he took the precaution to have the ship well cleansed and ventilated ; it was not possible for any one to take more caie lhan he did to preset ve the cargo. By a Juror : Did not go into Itaialea for bis own benefit in paiticular, but for the benefit of all concerned; paid for the first picking of the plaintiff's potatoes, because he should have done so for him as for the rest of the shippers if he had not been present. Mr, Abraham's address on behalf ot the pla'ntiff was. principally directed towards the establishment of the lollowing points, viz. :— That the Glencoe was in an unfit state for the reception of a vegetable cargo, in consequence of her having lecently brought cargoes of sheep Irom Sydney, and not having been sufficiently cleansed before the potatoes were put on board ; that the coal used as dunnage (alleged on the plaintiff's side, as the result of measuiement ot the space it occupied ou deck, to have been upwards of thirty tons, although for the defendants it was stated to be only six or eight tons) tended to the loss of the potatoes, as it was alleged to be wet and impure fiom the urine, &c, of the sheep ; that the delay at Itaiatea in picking the potatoes in the boxes marked JD, in which it was admitted the owners had an interest, had inflicted unjust loss on the plaintiff, whose potatoes were at that time in a sufficiently good condition to obtain sale, but were sacrificed by this delay; and that the plaintiff's concurrence in the com se taken by the Captain was only given because he could not help himself under the ciicumstances. the Captain having, in fact, given up the voyage when he leached Itaiatea. Mr. Wiiitaktr contended that, as the owners were largely interested in the cargo, theie could have been no wilful negligent . m the- preparation of the- vessel for the leception of the caigo, and that the defend uits had cleaily proved that hhe had been caicfully cleansed befoio any poitioii of the cargo was taken on bo.ud ; that the plauititf hud consented to the deviation of the cou;&e

of the vessel ; that he leceived his poods from the cap tain at 'laluti and disposed of them there, and that even it the vefsel had subsequently proceeded to her original port of destination, he could have been in no way benohtted, nor kept fiom damage, but, on the contrary, that by the vessel going no further than Tahiti, the plaintiff Lid .savpd money ; that as the amount of damage could only bo rated by refrience to the amount that his goods would have fetched in the California market, and as it had been proved that the potatoes would not have kopt until they would have reached there, that Jus empty boxes would not have realized nearly as much at San Francisco as they did at Tahiti, there could not bo any clear reason shown why the claim for damages should be granted. The following- is the summing- up of the whole case by the Chief Justice, The action was brought on two distinct contracts : — The defendants admitting both the contracts, and admitting also the non-performance of both. That, if nothing- moie were shown, would entitle the plaintiff to a veidict, although the damages would not, of necessity, be moi o than nominal. To entitle the defendant to a verdict, it was necessary for them to show tbat the non-performance had not been caused by any negligence or fault on their part. [The Chief Justice theu stated the substance of the pleas.] If the whole were condensed into two propositions, they would stand thus :—: — 1. That, from Auckland to Tahiti, the defendants wote not chaigeable with any default or npglect of the duty whicu the contract laid upon tbem, either as to the course of the vessel, or the pioper keeping of the plaintiff's goods. 2. That, at Tahiti, the plaintiff discharged them from their liability fully to complete the contract, and, in fact, did, by bis own act, render such completion impossible. [His Honor then remarked on the evidence in support of these propositions.] In deciding on the question of negligence, the Captain's conduct was, of course, to be judged of with reference to tho novelty and difficulty of the circumstances lie found himself placed in, and to the duties which lay upon him, not towards the plaintiff only, but towards all parties interested in the ship or caigo. • The two propositions just stated, were a good defence if taken together ; but they did not amount to such a defence unless both were proved. Thus, on the one hand, if the defendants weie fieefrom all fault up to Tahiti, yet unless, at Tahiti, they were discharged by the plaintiff, or prevented by the plaintiff's act, from going further, they were still bound by their contract to carry the packages on, which was in itself no impossib ility. So, on the other band, a discharge fiom goingfurther, would not, of itaelf, release them from liability m respect of any previous breach of duty. The meio resumption by the plaintiff of his goods, or of what remained of them, the defendant's voluntaiily yielding them up, and nothing further being said or done, would not bo such a release. It might be true that the best thing the plaintiff could do at Tahiti was to sell his goods and put an end to the whole speculation, and [yet it might be tiue that the damaged state of those goods, whereby he was moved to take that course, was the consequence of some breach of duty for which the defendants were liable. j If the sbip was in her right course, or even deviating' therefrom, necessarily for the pieservation of the vessel, or wrh the assent of the plaintiff, and under such circumstances the potatoes became decayed solely from pome intrinsic defect, the defendants -would not be liable for that loss. As to the degree in which an unnecessary deviation increases the liability of the owners and master, the j Chief Justice then read part of the judgment in Davis v. | GarreU (G Bmg.), which the counsel for the plaintiff [ had cited. In that case, plaintiff had put on board defendant's barge lime to be conveyed from the Medway to London. The defendant deviated from the usual course without any good cause, Whilst she was out of her course, stormy weather arose ; the water-com-municated with the lime, which thereby became heated — the barge caught fire, and both the lime and thebargo were lost. Some of the observations of Chief Justice Tindal were applicable to this case. As a loss has actually happened whilst the defendant's wrongful act-was in operation and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss if the wrongful act had not been done. It might admit of a different construction if he could show, not only that the same loss might have happened, but that it must have happened, if the act complained of had not been done. So here the-great point- for consideration is whether the cause of the damaged state of the potatoes was or was not one which must have operated equally, even if the vessel bad proceeded without delay on her regular course to California. Freight paid in advance is not recoverable back in case of any loss not imputable to the fault of the carrier of the goods. Whatever the plaintiff might jecoverin this action, could only be as damages, a breach of duty being proved — the quantum of those damages being in the discretion of the jury. As to the goods, tho measure of damages is that which the plaintiff would have made by his venture in case no blench of duty had been committed ; the only object of an action of contract being to put the plaintiff in the position in which he would have stood if there had been no breach. Therefore, if the plaintiff were entitled to any damages, the question would arise " What number of potatoes, accoidmg to a reasonable estimate, would have reached California in a saleable state, supposingthe vessel to have proceeded thither in <3ue course 1 And what price would have been obtained for them there!" A carrier of goods might be regarded as an insurer against loss to the shipper, by reason of any neglect or wrongful act of the carrier himself, but not in any way as an insurer against the failure of the shipper's speculation. f The verdict as agreed to by the jury was, as stated in our last — One farthing damages for the plaintiff; but by some mistake (of little practical importance however, as it did not affect the question of costs) it has been recorded as twenty shillings.

Friday, September 12. Salmon v. Pickering. This cause was first brought inlo the Supreme Court at Wellington, where it was agreed that the trial should take place at Auckland. j Mr. Meuriman (for Mr. "Whitaker, who, we regret j to state, was p) evented by illness [from attending the Court) appeared for the plaintiff. Mr. Bartley for the defendant. The action was bi ought to recover the sum of £800, comprising the amount of a Bill of Exchange for £300, drawn by the defendant William Phelps Picketing, in favour of William Webster, and indorsed by him to the plaintiff, together with interest and other expenses thereon. The plaintiff set forth on the declaration that, on the 4th day ol May, 1841, the defendant made his bill of exchange for the sum of £300, payable at foity days after sight thereof, and directed the same to the Manager of the Sydney Banking Company, at Sydney, to tlvS older of William Webster, who afterwards delivered tho said bill to the plaintiff ; and the said bill was duly presented for acceptance on the 10th day of June, 184 1, to the Sydney Banking Company, who refused to accept the same ; and that it was Iduly protested lor nonacceptance and for non-payment, and the same still remains unpaid, of all of which the defendant had no ice. And the plaintiff further set forth that the defendant is indebted to him in the further sum of j£soo for interest, costs and charges for exchange, reexchange, and damages. The plaintiff put in the bill of exchange, and the protest for non-acceptance and non-payment of it, and called Messrs. Lachlan OBrien (formerly clerk to the late Mr. Conry, Mr. Webster's Solicitor), Mr. W. Bourne, and Mr. James Macky, to prove the signature of W. Webster. The defendant in reply to the plaintiff's declaration said that the bill of exchange was indorsed to tbe plaintiff by Webster, after it became due, and after its dishonour by the Sydney Banking Company ; that before it was indorsed by Webster to the plaintiff the amount of it had been settled in an account stated between Webster and tbe defendant, and certain other hills of exchange before then given by Webster to the defendant in consideration of the bill now sued upon, were given up by the defendant to the said Webster befoie tbe account was so settled between them ; that the bill of exchange was not again mdoised, in the manner alleged, by Webster to the plaintiff, but was indoised by him to Rnnulph. Dacre at Sydney, and became due on the 23id July, 1811, at which time the defendant was residing at Auckland ; that when the bill of exchange was returned to Auckland on or about the 20th of~September following, the defendant was under confinement in the common gaol at Auckland for a misdemeanour, for which he was afterwards convicted and transposed, and that the action has been brought nitlmiMX years after the return of the defendant to to the colony of New Zealand from such transportation j

the saul bill had not been indorsed to the defendant alter it had been so settled in the account between Webhlev and tl»o defendant. The defendant put in an account current between imnselfand Webster, dated Auckland, September , L 2i, 181 („ signed by William Webster; and a receipt, ior two bills of exchange, also signed by Webster. Mr. Merriman, in addressing the jury, observed, that although the case had been but a short time in his hands.it was obvious to him that the jury, on siveial grounds to which ho would point, could find no difficulty in giving the plaintiff a veidict. lie would rcinm k, then, that the plea should have stated that the bill was sa i^fied ; but ihat could not be shewn, for (he account put m was not an account settled ; if it had been so, the bill should have been given up And then , at the date of thepiotcndod settlement, Webster had not power over the Inl l , it ueing at that lime in Mr. Dacre's hands, Pickering having received the notice of its dishonor at Sydney. And, further, there was no evidence that the account put in referred to this identical hill, as there might have been other bills, and that there most likely wete, and that one of those bills was settled with Webster— he having power over one of them — but not this one. Another point was that the bill mentioned m the account is £300 even ; it would not liavo been taken in settlement for that sum, as Pukering had notice that there weie £317 2a. due on in. The learned gentleman enlatged oia these points, and concluded bis address by expressing his regret that k.Mr. Wlnuker had not been able to appear and conduct the case with the details of which be was so much bettei acquainted , and trusted that the plaintiff would not suffer by the imperfect manner in winch he (Mr. Merriman) had placed the matter before the jury. Mr. Batully then addressed the jury for the defendant, and stated that his client was placed under great difficulty having to meet this action now, after the lapse of so much time fiom the dates of the transactions connected w nh the bill, and in the absence of the only one who could give satisfactoiy evidence as to settlement ot the bill now sued for— he referred to Webster, who, aa they all knew, was abroad at California. la tracing the bill into the bands of the plaintiff, it was stated that it had been indorsed by Webster to Dacre at Sydney, and, subsequently to its being dishonoured, by "Webster to the plaintiff. But the settled account put in showed that the bill had been retired, two bills having been given in lieu of it, which barred Webster from taking any further action upon it. The bill was settled in 1841 by Webster with the defendant, three years before it came into the plaintiff's hands. And th' n it was an oveidue bill, and the plaintiff, by accepting it, was subject to all the equities and objeclions belonging to it. And as Webster is hatred by the account which he signed, so alto is the plaintiff who accepted this overdue bill. The learned counsel dwelt at some length on the bcaiingss of the Statute of Limitations on the present case, and implo.ed the jury to banish from their minds all releience to the chaiacter.of eitln-r parties in the cause, and to be guided to their verdict alone by the justice of the case as it appeared fiom the facts laid before them. The Chief Jos hce, after remarking on the evidence as to tlie liandwiiung of tlie indorsement to tlie plaintiff, said if the Jury were satisfied that the indorsement was in Webster's handwriting, then the plamtitf had a right to recover, unless the defendant satisfied them that at the date of that indorsement, Webster could iMt have recovered any thing upon this bill against the defendant. For the bill being oveidue at the time ot that indorsement, the plaintiff did not by virtue ot that indorsement necessarily acquire all the ordinary rights of a holder of a bill, n mely, the light to recover the full amount of it. But he acquired only such lights against the defendant as Webster had, under whose indorsement he took the bill. If the state of accounts between Webster and the defendant in re-pect of the bill was such that Webster could have recovered only pat tol the amount or nothing at all, the plaintiff could recover nothing mure. Now the defendant pleaded that as against Webster he bad been wholly discharged fiom liability before that time. The only material evidence in support of that plea was the paper which had been sereral times called a Settlement of Accounts. The Jury would examine that papei and see whether it was hi reality a settlement of accounts, binding on both parties, and so putting au end to Webster's claim against the defendant, or whether it was merely an account cm rent, signed by one patty only, with the usual saving, and not absolutely binding ov conclusive against either pai ty. They would also consider, how far it was probable that the defendant would have come to a settlement in lespect of the bill, without insisting on having the bill produced and delivered up to him. It lay on the defendant to shew that he was not liable ; and unless the Juty were satisfied that he had ceased to be liable to Webster at the dale of the ludoiscment, the holder of the bill would be entitled to a veulict. Verdict for piainuff— ,£3ffo7 "interest, and costs.