High Court Of Admiralty, ...
lJr. HENIUY V. SALIXSBURY, Lb4. D.,'lntrodured byDr.Arno ld, having taken the usual oathsf at the bar, was admitted by Lord Stowvell amnoag the numfber of the advocates practising in this court. TUZE APOLLO. This waa an important. cause Of daMageS. IrroM the openiing of counsel and the proceedings whiceh were read, it appeared that it was originally a proceeding proniatedi by blr. Charles Bryant Tarlentt, in order to obtan pa.vnent of the suwm Qf 3,0081h, being ihd value of his three.eighttls' share in the sihin Apollo. Bail to that amount hiad been given in this touirt, on a former cecasion, when the Teasel was released, and proceeded on that voyage in the prosecution of which shie was ultimately lent. The proceeding was brought against Mir. IVilliamn Tennant and Alr. Nesbitt, owninig the other five-eighthi's share in the Apollo. In the month of August, 1821, this vessel wai intenidedI by the owners, justniamed, twra voyage to the East Indies, out and home ; but Mlr. Tarbutt, dissenting from their.initention, applied to this; court for its interferetnce a tnd the Apollo was ac- cozdingly detained till securiiy in the vay of bail had been giVen for the amount of Alr. Tarbutt's interest, in case ofaccidlent. She was then released, and sailed on her destination ; andl in the homewrard voyage was unfortunately lost otffthe Cape of Good Elope ; and Alr. Tarbutt now claimed to be reimburared in the amount of the ball that hiad been put in. This claim was met, on the present occasion, bv ani application fromn the, owniers of.the fiVe-e1ghths' share to the Crourt, praying that his Lordship would be p leased9 to rfcf? the mat& tar to the Registrar and mnerchants, in order to ascertain and assess the aniount of damages which they the said owners, had themselves eustained fromn the misconduct of Mr. Tarbutt, and to the end that such amnount might be deducted from his claiim. Dr. LusIINaGT02N, whio appearedI in support of the application made by M essrs. Tennant and Nesbitt, sitated t-hat the bulky pro. ceedings in this case would shoaw, that subsequently to the qrrestanid release of the vessel, Mr. Tarbutt haxl thrown every impediment in the way of the A4pollo's -prosecution of the voyage upon which his co-owners hail determined to send her; that he prevented the sails, in the first place, from being put on board for a considerable length of. time ; and then obtained, in the Ceurt of Chancery, an ew.pezrte !njunction, in virtue of which the vessel wasl detained: but this in- juinction), whien it catme oni to be heard before the Lord Chancellor on the mnerits, was dissolved, and after a very protracted delay, the Apollo was at last enabled to proceed to sea. The learned counsel thought he shiould he enabled clearly to show, that Alr. Tarbutt's acts....such as the circlation of reports to the injury of the sihip's character, and the property of the other owners-..had, by deterrnn passengers, and the merchanits, &cl , from freighting their good aboard her, nccasionecl to AIessrs. Lrennsnt anid Nesoitt a loss of not less thatn 5,01101. The learned courtsel hoped also to satisfy thie Court, fromn other circumstances, that theenartie-s he appearedi for were entitled to have'their application granted Mr. Tarbutt, in his act on petition, had sateitd a variety of facts that could posse-ss but a very remote beating on the questton before hisi Lordship : such as the alleged fraud of 111. Tennant. in representing himself an paxt owner of the 'Apollo, whien, at thie time, hiis broiteh-, 'Mr. Georke Tennantt, did in fac~t stand in -thiat situation ; andl an account-of an anterior voyage made by the Apollo in 1819.20,. iter deficiency. of stores the un8punsIness otfher provisions, &e. AU these avetmeW~s hie (i.liushtinston) was Instructed to deny; as well qs lh4t which declared, that immnediately prior to the voyage on which she was -lst, the ship went out oF the dock-yard of Sir Itolert Wig- Tam and Co. in a state nottsea-worthy. Upon the act on petitioni, as well as on the affidavits brought in, wvhich uould be found most unnecessarily amplified, the learned counsel should finally submit that the reterence prayed by his parties oueht to be mtade. Dr. JE-XE n, for Wllr. Tarbutt, stated that this vessel, while in thfe prosecution or a, voyage to wlichl he was averse, as had beca stated by Dr. Lushington, was totally lost at night, on some rocks in Table-bay. The facts that regarded the ownership of t4is ves- sel were not'disputed, and therefore Mr. Tarlitt became entitled to tlre benefit of the full amount of bfil that had been already given in this court for his share-namely, 3,000]. But it appeared that uub- sequently to the loss of the .Apollo, negotiations werc entered into betweei Alr. Tarbutt and the other owners: and a mnonition basving issoued and been duly returned, the other owners gave an appearance. The rroney was then bronglt into the Registry-but had n1ot yet been paid OUt, by reason of the prayer of Mf essrs. Tennant and Ncsbitt. I The learned counsel then adverted to the proceedings in the Coult of Chancery, a.d stated that in this case 2he first and menre important question would c, what power this Court possessed to reter a matter of the kind to the Registrar and mer- chants, in a camse whete a band had been executed for a partienlar andl sipeeiHic purposc, and secdrity had been given to meet a particu- lar event, which evenlt had since actually haptpened. A second question would arse on the merits of the case, should the Court ba of opinien that it had jurisdiction to entertain the first. Now he (Dr Jeaner) explicitly denied all the mnisconduct imputed to Mlr. Tarbui; and should contend, that he had done notlhing more than what was consistent With the due secarity of his o@n interest 7 and was therefore entitled to have the 3,0001. paid to hinm out of the Re- gistry of this Court. Lord STOWV ELT. strongly reprobated the excessive length to which the proceedings in this case had been allowed to run, and the great mass of extraneous matter that had been introduced. This Court was not to be called on to revise proceedings in courts of comnonri law and equity; amd, on tlte other hand, wlhere these had been brought in, in such a shape as might have 2ssisted the judgment of this Cotirt, the grounds of the sentence of another jurisdiction were not stated. )r. Lussh1syGo'o advised the Court. that the sentence of the Lord Chancellor, on lissolving the injunctlon, was so long, that had it been brought in, it would have vastly increased the bulk ot the process, great as that already was. The reading of the evidetice was then proceeted with ; from which it further resulted, that out of 23 passengers who had engaged to sail in the .,polio, noless than 16 altered their intention. in conse. quence of the proceedings tbat were taken by flr. Tarbutt, thel subsequent delay, &c. The letters of these parties, explaining the iuotives of their change of intention,were also read ; and on behalf of* Ir. Tarbuutt,eidenco was brought in to prove ths trequentoccasions on whichi he had expressed his conviction of certain repairs being ne- cessary in the Apollo, that, on a survey by professional mer, were pronounced to be so wanting ; his conviction of the ship's dangerous state in consequence of divers alterations that had been inade to en- large the accommodatisns for passengers and the necessity he had been ntlder of taking the steps he had adopted, with a view to secure his interests. Dr. IiusHINGToN,pending the reading of the process, expressed his willingness to refer the matter, as had oIice before becu offered, to arbitration, as between the claims of these parties. Lord STOWXLL would very readily allow the casc to stand over till next Court day. Dr. JENNER, after a short consultation, infornned the Court that his pariy wou.l prefcr going on to take the Court's opinion. Thle reading was then resumcd, and being comrleted, Lord STOWEL. said. lie would take the argument on the next Court day. HIGH COURT OF ADMIRAb'r'v ' V?- A-x. A