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1815

LEWIS O. SMITH, Esq. Treasurer of the West India

Dock Company.

Jane 26.

orney

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TROVER.-Woodbridge & Co. had imported A letter

from the plainI thirty bags of coffee, and warehoused them tiff's atto Pm in the West India Docks; they sold part of it to the secre to Cummings & Co. whilst it was lying in the West India

Dock Compa. Docks; and Cummings & Co, entered into a con- ny, claiming

the delivery of tract to sell it to the plaintiff. Lewis had paid some coffee, in

the possession Cummings & Co. for the coffee, and the present

of the Compa. action was brought to recover the value from the ny; at their..

Docks,adding,

“ that he was Company, who detained the coffee under an in

instructed to demnity from Woodbridge & Co. who being un take legal mea

sures, if it were paid had stopped it in transitu.

not delivered forthwith,” is

not a notice By the 39 G. 3. c. 69. s. 185, the Act of Parlia- of action with.

in the meaning ment which incorporates the West India Dock of the 39 G. 3.

c. 69. 8. 185.; Company, it is enacted, that no action shall be the Act which

incorporates brought against tlie Company, without giving four

the Company.

tion. and Quære, if the teen days' potice, in writing, of such action; and

notice of acthe only question in this case was, whether such tion should not

be to the treanotice had been given.

surer of the Company?

To shew a compliance with the requisites of the Act, the plaintiff's counsel put in a letter, written by his attorney, and directed to the secretary of the West India Dock Company. In this letter, the attorney, in the name of the plaintiff, stated his title to the coffee in question, and made a regular demand of it; adding, “that he was instructed to take legal measures if it was not delivered forth

1815.

LEWIS

SMITH.

with." To this letter an answer was sent by Messrs. Kaye & Co. who acted as attornies for the Company, stating, that they required to see the necessary documents which constituted the plaintiff's title, before they could advise their clients to give up the coffee. About three weeks after the receipt of this letter, the writ was sued out.

The Solicitor General, Lens and Best, serjeants, for the defendant, objected, that the letter sent by the attorney of the plaintiff was no notice within the Act of Parliament. The Act directs that all proceedings shall be against the treasurer for the time being, and the plaintiff bas elected to sue the treasurer in the present action. But a letter to the secretary is no notice to the treasurer; granting that the letter itself was the proper and formal notice required by the Act, which they contended it was not.

Vaughan and Pell, serjeants, for the plaintiff.The clause does not direct to whom notice shall be given. It may be given to any servant of the Company. But the answer shews that they have committed the business to their solicitor, which is a waver of all objections to the notice. If it reach the Company, and their solicitor answer it, it is sufficient. The same formal notice which is required by the 24 G. 2., when bringing an action against a magistrate, cannot be necessary in the present' case. The letter gives the requisite information. You have coffee belonging to the plaintiff in your possession; if you refuse to deliver it up to him, he will commence legal proceedings against you.

1815.

LEWIS

SMITH.

Gibbs, C. J.—This is an objection in form, but I am bound to take notice of it. The Act of Parliament directs that all actions shall be brought against the treasurer of the Company. I do not consider this letter as a proper notice of action within the meaning of the Act. It is rather a communication of courtesy. It leaves it open to conjecture what legal proceedings were in contemplation of the plaintiff, and against whom they were to be brought. The answer shews that it is a cominunication of this kind. The solicitors for the Company do not say, we will appear. They answer, let us inspect the documents, and we will then determine whether we shall advise the Company to deliver up the coffee or not. This is not a notice of action, but a mere communication.

Plaintiff nonsuited.

Vaughan, and Pell, serjeants, and Comyn, for plaintiff.

Solicitor General, Lens and Best, serjeants, for defendant.

[Attornies, Noy and H. and Kaye and Co.]

1815.

June 28.

Hucks and Others v. THORNTON.

did not ap

A vessel with liberty to chase and cap- ship Vigilant, dated August 19th, 1807 ; to ture prizes, has some Spa- commence on the 1st of August, 1806; lost or on board. By not lost; with or without letters of marque ;

with means, which

liberty to chase, capture, and man prizes; and to pear, they

see and take them into port, &c. The loss was break loose, rise upon, and alleged to be by the barratry of the mariners, &c. imprison the crew, with the The ship left England in 1805 ; she was licensed one sailor, who to sail without convoy ; her burthen was 199 tons, is heard upon with 10 guns, and 24 men. In July, 1806, she conversation had been reported safe. During her voyage she with them. The captain had made several prizes, and a short time before and crew, with the exception ,

the loss, which was the subject of the present of this sailor, action, she had taken a Spanish vessel.

Her shore, and the original adventure was the whale fishery, and she

with the had taken one whale of 36 gallons; but she had ship. Upon a loss al. latterly desisted from this part of her adventure, leged to barratry of and was principally employed in the seal fishery. the mariners, In the autumn of 1806, she had on board some dence to be

Spanish prisoners. By some means, which did left to the Jury that not appear in evidence, they were let loose ; they such barratry was commit- rose upon the crew, murdered the mate, and conted. Where a

fined the Captain and sailors, with the exception vessel, engag- of one man, whose name was Brookson, in the ed in the Southern

steerage. The sailor, who was left at liberty, vhale and seal fishery, and with liberty to chase and capture prizes, is insured in August, 1807, with a retrospect to the 1st of August, 1806, although at the time of her insurance she was not competent to pursue all the purposes of her voyage, her crew being reduced by death and casualties ; if she had a competent force to pursue any part of her adventure, and could be safely navigated home, she is to be deemed sea-wortby.

1815.

appeared to be acting in confederacy with the mutineers. The captain and crew, with the ex

HUCKS ception of this man, were put on shore on the

and Others Spanish main, and marched up to Quito; and the

THORNTON. mutineers ran away with the ship At the time of the capture, the crew was reduced to nine men and a boy. It was in evidence that the crew had suffered by death and desertion since leaving England, and that at the time to which the insurance referred, they did not exceed nine men and a boy, though five prisoners were on board. It appeared that the prisoners had been properly confined, though occasionally suffered to come out for air and exercise. It was in evidence that, with a crew so reduced, it was impossible to pursue the whale fishery, and keep a proper guard over the prisoners; but that the crew was sufficient for the seal fishery and other purposes of the voyage, and likewise to navigate the vessel to England.

The Solicitor General, Best, serjeant, and Spankie, for the defendant, made two objections.

1. No barratry. The Spanish prisoners rose upon the crew and ran away with the ship. The plaintiffs may allege any species of loss; they might have alleged simply that she was taken by the Spanish prisoners. They have chosen to ascribe the loss to barratry. If the crew assisted the prisoners in seizing the ship, or were passive and permitted them to take her, that would be barratry: but the present case afforded no evidence of that sort. Did it follow that Brookson was a

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