Court Of Common Pleas, Tu...
This was an action tried before Lord Chief Justice Gif. forn, at Guildhall. in the sittings after l4st flilaWi Teri g,aild iwas brougilt by the plafntiW, who is a &sptain in the East India conr. pany's naval service, to recover a c ertation iamages from the dlefendant, who is a considerable ship..owner at Shadwell, for the breach of an agreement entered inito between them. It appeared that the defcn(lant purchaased in 1819, of Messrs. Smith and Tim- brell, the ship Mirzerua, whichs vit.s csmmansled by the plaintiff, Captaini Richardson, was chartered by the. East Indlia Company for six voyage., or which four then remaimed unperformed. The tde. fondant, wishing to assist a friend of his own samed AMills, who thie, commalded the Afarquix of Ely, another tessel aiarteved bv the Bast IndiaCompany, entered on the Ikth of January, 1819, into an agreemeit with the plaiutiff; Captain Richardson, by which he con. Z ented to give up the command of the .4finerva to Captain All1s, on condition that Ihe should yeceive She comrnand of the Mllarquis of Ely instead , and further, that shoald Captain AMills die or tesign the commantia before the time of the Companyos charter of the Mi. ner-a ha(l expired, he should be re.Rppointed to her cormatid. Fur; Suant to this. qteement i plicatioyn was made to the birectdrs of tbh East India Company for their consent to the interchinge of command betwveen Captalh Mills and Captain Richardson; aud after some stiort delay it was obtained. Both sailed on their respectives voyages2 and. hvortly a.fter f.apun Mills's second return lie died. The plaintiff then applied to the defendlant to bereinstated in the command of the ilIincrva, according to the terms of his agreement; but the defendant refised to reinstate him on thteground that theagreement between them hanA been subsequenKti y canceilec.l.n consequence, the plaintiff' brought hI; action to recover the loss which be had sus.tined by being de- privedl of the command of the Minerva for the two voyages which site had still to perfornt, wlien he if ade lils claim UPon the defendf I ant. 's o enable the jury to estimate tile amount of htis loiis, seversal last India captains were examnined at the trial, who stated, that the average suims netted by the captain on such voyages as those f)r wlicil the Minerva was chartered, was from 6,0001. to 7,0001. On ! the pakt of the aefence, it was contended, that the agreement was il- legal, being against a bv-law of the East India Company, which tiositively forbad the selling fur any consideration the command of ' vessels chartered bv them, and also that if it was legal, ithaA been 'iven up to be carncelled by the deYendant, in consequence of his tavilig obtained leave bv the agency gf.tJhe defendatnt to touch at St. Helena, on his road to Clilna-an indulgende which sonfle witnesses estimated at 2,0noi. Seeral persons v*ere called to substantiate this statement; but the jury, when his lordship was proceeding to sum up, told him that they were satisfied that the agreement had not been cancelledi, bitt had merely been deposited with the defendant for purposes of security. fHis hordship then charsged the jury to e.ti- mate what danagem the plaintiff' was entitled to for the loss of the twvo voyages which were to be perforned by the lufiterva after the deati orf Calptain dIfills; and they returned a verdict fort theplaintifl'r of 7,i001. In the course of last term, MIr. Sergeatit Pgr,r. moved to set the verdict aside, and to enter up a nonsuit, on some legal objection which he had taken on the trial; but being unsuccessful on that ooint, he obtained a rule to show causse who.a new trial should not be ranited on the fire following grounds, 'first, that the agrepment tvas illegal; secondlyv, thiat itwas not only illegal per ic, but lltegal as between the plaintiff and the defendant, on account of there being ih.ttr psart owine7s of the vessel; thirdly, that it was part of Cite agreentent that a Dir. Fletcher who had negotiated the purchase of the Afincrva for MlJr. Mfellisl, should pay 2,0001. to Captain RicharJson, in case the exchange between him and Captain Aills were not ratified by the taat India Companv-l. ground, which the learned sergeant said, was connected with ithe first question of ille- gality; fotirthly, that evidene!e had been received at the trial which ought not to have been receivedl and fifthly, that the das l mages were excessive, and occasioned by a misdirection of the ludge, who had told thie jury that if they gave a verdict for the plaintiff, they must calculate the damttges by the proceeds of two voyages to be made by the Mfinerva, when in point of fact the Itreroe was On her lasrt voyage but one at the time the plairjtiff orivit,aliv madie his demand upon the defe;idant. The rule came on for argument yesterdaky and alier AMr. Jusdce PAnR had read the learned Judge's report of the trial TheLo)iD .iiirxEF3 JusTIcE said,that he should ?eel orbliged to his learned brother (M1r. Sergeant PIell) to point out to hin shortly in what the illegality of the agreement between the partits c6nsisted. Mlr. Sergeant PIt.tL said, that it was a qttestion to which he codIdl not give so summary an answer as his l,ordship seemed to expect. The illegality depended upon various circumstances in the csse, whliic ie must eturmerate before his Lordship could see the force of his argument. The loRab ClflEF JUSTICE, intermpti m.xIr. Sergeant Vaughan wlto was counsel for the plaintiff, said that the Court would ratn:er hear M.r. Sergeant Pell upon the point which it had re- ferre(l to hiun. Ihdr. 9ergeant PEPI. then entered into a detence oF the tule. He argoed titat the damages were excessive because the ship Airierva mifghtitever have made two voyages, Ind because the plaintilfmight not have lived till the completton of them. Hlesides%, fresh charter anuda fresh re-appointinentof the captain by theEsastindiaCo pany were necessary for every voyage which the Minerva made. It did not follow that even though the Mi nerva were re-ehartered, Captain Riciardison would be re-apgointed to eovnnsand her. The evidence on tie trial showed that Captain Richardson liad been a bankrupt; and no bankrupt could coinmand a Cotnpany's ship. It was there. Iore impossible for dhe defendant to have given htim the commanid of the Miertrva. The Cou RT intimated thlat this was an objection to the agreemenit, which it a ppeared fronm the learned Judge's notes had mot been niade at the txial, and( which they could not therefore listen to at present. Mllr. Sergeant 1Patlorecd.e to contend that the damaeges ought not at any rate to have heeni for the profits of two voyages, since the verdict of the jury might induce the defenilant to give to the plaintiff' the comniand sf the Minertva for the last voyage which was yet un- perftmied. Ree was urgin this eonsidergtion upon the Court when The LoRnD Cuerls' Jusrticr informed hin), that as he had to sit at ti i riurs in London, lie must defer till to-morrow the remailnter of his argument upon this and the other points which lie had sutb; mniu l to the consideration of the Coqrt. X iis L,ordship then went to Ouildhall, Lotdon, where lie wtat oc- tcupied in tryintg commion jury causes. (OCTRT (Ir crONEItON PLAA. Tu*.n,v .rvJTyr 0?. ]tlyrlt.vtnDSo.z V. SELst