Court Of Common Pleas, Th...
M.r. Dergeant rELL resuned fItS argument in this case, and after taking a review of the evidence given upon the trial, of which a sum- mary was given in our paper of VFednesday contended that the agreement between the psrties had been cancelled, in consequence of tbe voyage hlaving been altered by the defendant for the benefit of thep2aintiff. He complained that an impression in favour of the plaiatiff had been made on the minds of the jury at the commence- ment of the trial, which it was impossible to eradicate by any evi- dence afterwards offered in the course of it: and maintained that if ever there had been a case which required a judgeto give directions to. a jury, it had been the present, in which there was much con- flicting testimony that required close and delicate invesfigation. After regretting that the learned Judge had not called the attention of the jury to those facts which hereupon the first issue they were em- panelled to try_namely, whether the agreementhad been cancelled or not_heproceeded to re-statethepointsupon whichhe moved theCourt either to grant a new trial or to arrese thc judgment. The jury, he said, had giLven the defendant a verdict for 7,6001., on the ground that it was an equivalent for the damages he had sustained by not having the command of the Minerva for two voyages. Nowon tis record2 they had no right to give damages for more than the loss sustainto in not having the command for the last voyage but one whici the Miaepra had to sail. It was evident from the sum which the jury fixed upon, that they had taken into consideration the pro. fits of two voyages. The LORDCHIEF JUSTICE would admit that point; bat could the learned counsel show the Court that the learned Judge who had tried this case had done wrong in directing the jury to estimate the damages as for two voyages ? Air. Sergeant PELT., with a view to satisfy the Court on the point1 which it nad put to him, read the agreement upon wliich the pre l sent action was brought. He then read the breach, of it as contained in the declaration, wherein it was alleged that " the command of the Msinerva had been given to another person for the said two re- maining voyage, by means whereof the plaintiff had lost and been deprived of certain pay and other gains and profits, amounting to a large sum of money, to wit 10,0001., which otherwise would have, accrued to him from the same command." Now in the whole of| the trial no proof was offered that the command of the Minerva had been given away for two voyages, neither could such proof be offer- ed, as on every fresh voyage it was necessary to re-a ppoint the cap- tain. The Minerva was at the time performing her last voyage but one; and flon corstat that the defendant might not on herreturn have been presented by the defendant to the East India Comnpan v as a fit person in his uncontaminated and unbiassed opinion to command her i on her last voyage. The averment in the declaration was therefore incapableofproof. Hle knew, however, that it might be said that this objection only went to the damages; and if it were so said, he would meet it by declaring that that was his point. He contend. ed, that as the agreement was to appoint A. B. to command che AMi. ncrvaon eachvoyage, supposingA, B. to be in a situation to undertake the command at the time of his claiming it, no action was capable of being sustained upon both promises, until the defendant had been specifically called upon to perii'ffir each.of them. Now, allowing that the defendant had been called upon to perform his promise tLs toone of the voyages of the AMieiva and that damages might be recover- ed of him for hiB failure to pertorm it, how was it with repard to the other, which at the time of trial was unaccomplished? ?he plain- tiff might never have been in a situation to claim the appointment to the command for that voyage; he might have been prevented by ill. health, by bankruptcy, by the want of his certificate, by theloss of the ship, by its unfitness for the voyage, by legal objections to his undertaking it, and by various other reasons which he would not enumerate. The Lo tD CUrEF JUST IrCE.--SU posing he had died before he could have claimed tbis promise, and that is the strongest of all the contingencies whilchyou can put; supposing, I say, that he had died, still the jury have taken such contingencies into their consider- ation, and have given little more than half the usual profits upon two voyages. Air. Sergeant PFLr. insisted that these contingencies had not been offered to the jury, neither were the jury entitled to take them into their consideration. The jury. in giving damages for two vovages, had given damages upon a point with w4 hich they ought not to have meddletl, inasmuch as the last voyage had not then been perforicd, and as the breach of the agreement on each voyage was a fit subject for a separate action. le likewvise contended, that evidence had been admitted at the trial on the part of the plaintiff, which in point of law was inadmissible. Ite alluded to a book, offeied and admitted as evidence for the plaintiff, which vas made out and delivered to the East India Company in pursuance of the 53d Geo. III., cap. 155, sec. 15. 16. which enacts, that a register shall be kept of al ner- sons, with their rank, &e., embarking front the ouEports to the East lndies. That book was produced for the purpose of making out the profit which the plaintiff would have earned by his passengers, had he been in command of the Minerpa. He had objected to that beok being read fin Court, because having answered the public object for whicl it was intended by the legisiature, it was not applicable to any ether private purpose. Besides, in that book, there was not annexed to the name of eaclh passenger the sum which had acen paid to the captain for his pas- sage-money. All that the book containcd. was their rank andsi- tuation; and after their rank and situation wereascertained, there was annexed to their names the sum usually paidby personsof their condition for their passage out to India. He had pressed this ob. jection at the trial, and placed it before their L.ordships as one ofthe grounds on which he moved to set aside the present verdict. The learned sergeant then proceeded to the next greund on which he had obtained the rule for a newv trial, and contended that this agreement was null in law, that it was contrary to a by-law of the East India Company, that it was in opposition to the policy of the common law of the land, that it could notbe enforced, and that no right of action could accrue upon it. The by-law of the East India Company which was broken bv this agreement was to be found in chap. 13. sect. 11. of their By.laws. The learned sergeant then read the by-.lw, by which it is ordered that no owner or par; owner of a Sihip, and that no commander or inferior officer of a ship, shall, di- rectly or indirectly, sell, or take any gratuity or consideration; and that no person shall buy, pay, or give any gratuity or consideration for the command of a siip freighted by the East Inlia Company; and that in case any payment should be made for such command, by or to the parties above mentioned thc commander ehould be de. clared incapable of serving the East ?ndia Company in anv situadion whatever, and the slhip should be discharged; and that the parties consenting to receive any gratuity should be liable to the Company n a penalty amouning in value to twice thatl of the gratuity receiv- ed; and that they should be liable to answer in a ill of equity, wlithout pia or demurrer, upon all such matters as the Company should call upon them to diselose regarding such gratuity; and that a clause to that effiect should be inserted in all the shipping contracts of the Company. Now he contended that the exchange of the con. mand of the two ships, the Marquis of El and the winerva, was a gratuityand a consideration both tothe plaintiffandthedefendantin the presentf*uit; indeed so much so was it,thatit was proved at the trial that incasethe exchange-wete not ratified bythe lastIndiaCompanv,Mr. Pletcher should pay to Mr. Mellish no less a sum than 2,0001: He argued that the agreement for this exchange disabled the defendant from presenting the plaintiff to the ast India Comprny as a fit per- sox to take the command of their ship Mirerva. The presentment of a captain to the East India Company for approval by the owner under any circumstances which tended to bias thiermind of tile owner, was not such a presentment as could be made to the East India Comipany under the by-law which he had just read to the Court. The precentment should be made by the owner upon this ground only. I present A. B. to command the ship C. D., because I be- lieve him to be a fit and proper person to command her, and for no other reason." Tie LORD CIrEF JUSTICE.-If that be so, I fear there has nevet yet been a presentment good for any thing. Mdr. Sergeant PELL continued to argue that the motives which had led the defendant to present the plaintiff as a fit person to com- mand a ship of the Company were not pure ant disinterested; * on the contrary, so far as thtey militated agatnst the by,law of the Com. pany, they must be considered corrupt. In saying corrupt, he mesnt corrupt, not in a moral but in a legal poinit of view. It was true that the East ldia Company had eonsented to the exchange contemplated by the parties to this agreement; but then the 13ast India Company knew nothing of the agreement nor of the particular ircumstances tinder which the exchange was to take place, Ile argued that the withholding such knowledge from the dast India Comnpany was a fraud upbn it, and that the commu- nication of such knowledge would have incapacitated both the plain- tiff and the defendant from teceiving any benefit from the Minerva's being freighted bytheCompany.The agreeinenttvas, therefore, clearly illegal as far as the East India Company was concerned ; and being so illegal, no right of'action could accrtue upon it. It was also ilegal as far as the other part-owners of the vessel were coneerned ; for the defendant, it oughttobe recollected, wvas not sole owner of it. In the case of "Card and Hope," reportc ini the 2d volume of Barbe. wall and Creswell's.Reports, 'it was suggested by the Court iDi the course of the argument, that a^deedtniigit be void which stipulated to appoint an individual to a comniand of an East India ship for ie. veralsucecestive voyagles. The Courts therefore, wished to bear the point tirgued by' counsel. It wzas itccordingiyao auaed,- and the ourt was uhltimately ofopinion, that such s deed was illegal and void as ben.g colltrary to tle istereits of the charteres siud other oowneis, wifth required that there shotald be a free, imipartial, a-ld disinterested ecommendrgionof the party who was to fill the re- sptnsible situation of captain of the vessel. Thc learned coun- scl here read the opinion given in that case by Lord Chief Justice Abbott, and contended, that it was directly in sup- part of the case which he was now arguing. If the doctrine laii down in the case of " Card and Hope" were law, then the rgrecmen. oa which this action was founded was illegal and if' it were illegal, no right of action could accrue upon it. He therefore contended in conclusion, that upon all the arguments he had urged, the Court were bound either to arrest the judgment, or to grant a new trial. He trusted that the Court woild 'grant the latter, as it was of the ut- most consequenee to the chaTacter of the defendant that this case should he again submitted to the investigation of a jary. Mr. Sergeant LAW vS followed on the same side, contending that for the sake of his character Mr. Mlellish was anxiobus to submit this case ahgain to a urv ; but that lie was determined, if he could not ob- tain that point, to meet this claim, which had no foundation in jus tice, wuilt the strictness of law. TIhe LoRD CHi?EF JUSTICE.-If Air. \eUlish is only fight. inr for his claracter, he had bet,er give up his law. Air. Sergeant LAv Es then proceeded to recapitulate the principal arguments urged by his learned brother, insisting first, Otat the agreement was illegal, and therefore gave no right of action * and, secondiv, thar if it were not illegal. there ought to have been a dis. tinet action on each distinct breach of the agreement. Danmages oughit not to hare been calculated as upon the profits of two voy.ages, since Mr. .4Iellish being unsuccessful in the first actio, was likely to avoid a second by appointing Captain Richardson to the command of the Minerva, supposing him to be-capable of taking it. The LoRD CnsgEs JUSTfCE.-Tt appears from the trial that he had put it out of his power to re-appoint Captain Richardson to the Minerva, by having sold the ship. N r. Sergeant rrI.nDE WI,s also heard on the same sile. He com- menced his observations by defending the character of iMfr. MIellish from the reflections whiclh had been or might be cast otit against it in the course of this suit. The Loan Cu?rEr JusTec E'vas not aware that ant insinuations had been thrown: out by the Court against the character of Mr. MIel- hish. It did, however, appear a little inconsistent that his counsel should stand up so strongly fior his character, at the very time that they were contending thzt he had been guilty of what in the eve of the laW WaS a fraud upon the East India Company and his fellow- owlers. AlIr.Sergeant WIr,DE was not alluding to the Court, but was rathier anticipating the observations which lie might hear from the other side, or which, if lie did not hear in that Court, he miight at a future time hear elsewhere, without the power of answering. He regretted extremely that the Judge had not at the trial sumnmed up the evidence in this case to the jury ; and contended, that even though a jury declared itself satisfied with the evidence, ajudge Was bound to read it over thelm, in justice to the suitors, making such remarks to the jurv bv the way as his experience dictated. Alr. Justice PARE:.-Don't pressso hard upon theJudges, Brothier 'WIlJe, as you are destined some day to be one of them. My prac- tice is, and alvays has been,when aitury tell me that they are satisfied with the evidence, to ask them on which way their minds are made up. If I find their opinion to coincide with myow n, I think itan useless waste of the time of the public to read over evidence to theni, on which they appear to me to have already come to a right conclusion. If, on the contrary, I think they have come to a deter- mination to which I cannot conscientiously subscribe, then I feel it my duty to persist in reading the evidence to them, in the hope that when they hear it again; they may correct any errors of opinion into which befiore they may have unintentionaUv, and perhaps unknow. !ngly, fallen. I believe this is the practice of every judge;5 at least it is mny own. It would be too mluch tc expect thzat in every case the evidence, however satisfactory it may be, should be read over to theiury. It would be an idle waste of the time of the Judge, and an unnecessarytrespass on the patience of the jairy. I do not find upon the noble and learned Judge's report any remnark expressive of his differing from the finding of the jury; antI from his not reading over the evidence to them, I conclude that he did not deem it uRsa- tisfactory. The LomrD CHIEF JUSTTCE, at this stage of the argument, in- formed Mr. Sergeant WILDE that the Court vras obliged to rise at that moment, and that it would hear him further in support of 'he rule to-morrow. F,7raCez._.-In our paper of WVednesday we stated that the 3d point on which Ar. Sergeant PELL movea for a new trial in this case was, that there was an agreement that Alr. Fletcher should pay 2,0001. to Captain Richartdson, in case the exchanze between Captain Richardson and Captain M1ills were not ratified by the East India Company. It ought to have been " should pay 2,0001. to Mr. N pellish." COURT OF COMMON PLEAS. TuURSDAY. JTITT 1. RICHIARDSO}; V. 1MELLISH.