Court Of Common Pleas, Fr...
(Sittin,es iit Banco.) leer. e5ergeant WILDE this morning resumed hiis arguments in this ase, and proceeded to contend at considerable length, that the iury should have taken into consideration the many contingencies, which might have prevented the plaintiff frem realizing th6se profits for the loss of which they gave him damages, before they gave him a verdilt for them; that no consideration had been given for the con- tract; and that even aimitting that a considieration had been given, such consideration was corrupt and iUlegal, and therefore rensdered the whole contract from the beginr,ing null and void. The COnRT, after consulting for a short time, called on Mr. Ser- geanit BOSANQUET to reply: the learnedSergeantwas about to pra- ceedl, when Lord Chief Justice BEST said, that the Court would Rot trou. ble him, as they had no doubt on the case. His Lordship then proceeded to give his opinion. Complaint, he observed, haa been made that the jury had come to a verdict in this case with too much precipitation. He did not think so; hut, at all events, the same objection could not apply to that court, as they had now spent a very consideiable portion of three days in attentive consideration of it. t was, unfortunately, difficult to come at the points of the case, as It had been argued on differert grounds by soie of the de- fendant's counsel. it was now contended by one of the learned count sel, that this was an agreement given without consideration. This was an objection not made at the time the rule was obtained, atnd twhsugh undoubtedly the defendant had a right to make such an ob- jection in arreat of5Judgment at any time before the judgment was entered up! yet it was but fair that the Court should have been in- formed ot it at the earliest period, in order that they should apply their mirds to its consideration. Having said this much of the course which had been pursued, he would now come to the points on which the motion rested. These were five ; the first three applylug as ground2 for a new trial, and the remaining two being in arrest of jnd rent. The first ground was, that the jury had been improperly irected by the learned Judge; the second, that illegal eyidennce had been admitted in the receiving the captain's list of pasaengers: the third, that the contract itself was illegal, and that the plaintiff could pot receover under it; the fourth was, that no eonsideration had been given for the contract, and the fifth, that even ifa consideration had been given, such consideration was con- trary to law, and therefore of no effect. Upon eaeh of these he would say a few wordls. With respect to the first,-that thie learned Judge had misdirected the jury, In telling them that they ought to take the profits of the second voyage into consideration, he was clearly of opinion that the learned Lord (Gifford) was bound to give such a direction, and that if he had not given it, the omission would be a sufficient ground for granting a newr trial. The jury had evidenice before then that the profits of a voy- age weresix, seven, and even eight thousand pounds. They, how- ever, did not take the highest amount; they took a middle course ; and, considering all the contingencies uwhich might have arisen to lessen those profits, they gave 7,5QO1. as a compensation for the profits of the two voyages; and in this finding he could not perceive that they had given excessive lanmages- The case had been likered to one where an agreement had been made for stipulated pay- ments at stipulated times, and that the action could only arise at the time when each payment should have been made. Ile was not of that opinion. The case liad but one neck, and that had been cut off by the act of the defendant, and he was to be an5werable for the consequences. With respect to the second point,-the admission of the captain's lIst of pas- sengers as evidence against a third partv,-that list was made in virtue of an act of Parliament, the b3? (Oeo. III. Its object was to give to the East India Company full informnation of what description of persons passed from this country to their possessions in India. The captain was obliged to make the return on oath, and the officers of custoras were authorized to administer it to him. Now, such a list he considered to all intents and purposes a public document, and he thought that It was as good, and even better evidence, than the booke of the Bank of England, or the books at Lloyd's, which had been held to be legal evidence. Upon this point, therefore, he wras of opinion that the motion could not be sustained. The. next point was, that this was an ilegal transaction, and tl,t the plaintiff could not recover in consequence. He tLord Chief Justice Best) had stated in the outset ef this cause 'that he did not know the defendant; and whether or not, he certainly did net mean to say any thing which could hurt his feelings * but he musSt say, that the arguments of his learned Counsel vrere rather in- consistent. They bad contended that their client was an honest and honourableman, and he (the Lord ChiefJustice) hoped that he was so in all his other trantsactlons; but here the Court found thls honour- able man defesiding himself from liability under this agreement, on the ground that he had cheased the East India Company and his fellow-owners, and that an agreement so founded was illegal. These arguments were at least inconsistent with each ather. But whittever the Court might think of the taste of an objection EO made, yet undoubtedly if it was of any weighlt in law, the detendant should-have the benefit of it, whatever might be. come of his.cliarset in the interim2. But the objection failed himn, for, loo~ingte the $tanwchoonr n e itwas IsNA. It it Xv1 te 6ave 6A 1 hAJ A d1* Nt India CoM. Early HRe tid not think so. This was a transfer of a genteman trom the coDmand of one vessel to that of another, and was donc with the lnowledge and consent of the Iast India Company.. How could su' I. transaction be made void on the gxounnef1 ega1ity ? It wa said that such agreemnnti were iieegal as. being against pub. Iic policy. That was a ground whiah had, he teared, becn carried tyo far by 'ery many of his predecessors; but he would never act upon it, 'unless it were most distinctly proved before lhim. Most tondoubtedly no such evidence was given in this case, and he did not see why It-slhould be presumed in the stbsence of proof. A great many cases had been cited to show that wlhere tllecaliry could be proved against the agent, it should affect the prini. cipal. - No doubt there were many cases where that rule would apply, but he was not called upon to decide that question Pow, nor did he think It ought to be gone Into, as ft was not ralsed on the trial. Looking, then, at all that had been p roved wil respect to this part, he was of opinion that there was nothing done with the know- icdge of the plaintiff which could vitiate the agreent. Then, with respect to the points made for the arrest of judgment. The first was, that up consideration had been given; he thought otherivise. It was so stated in the declartion, and even if it were not, it ought not to he presumed after a verdict. But it had been contended, that even admiting the consideration, it was illegal on the ground that this was a public office within the meaning of the act of Parliament, and that any sgreement to give it for a pecuniary consideration was illegal. He was glad that the act had been qtoted- undoibtedly theact intended that no pecuniary consideration or other emolurent of a pecuniary nature should be taken for procur- ing an office of a public nature but if it intended that any other consideration should be included,it would so have expressed it. Here, however, it did not appear that any consideration of a ecuniary na- ture had been given. Taki:ng all the circumstances of the case into consideration, he way of opinion that neither the motionl for a new trial, or that i'arrestofjudgment,could besuatained; and that both must be discharged. Thc other Judges concurred in this opinion, and the zule was Gr~ dercel to be diaehaev.p&l- COURT OF COMMON PLEAS& FRIDAY, JUT.Y 2. R1CHIARDSON V. MELLISI.