1822. The KING against WILLIAMS. stating the purchase of the newspaper containing the libel, and that the defendant was the proprietor or publisher of the paper. Brougham and Carter now shewed cause, and urged that the Court would not grant a criminal information for a public libel, upon the application of an unknown private prosecutor, and without any affidavit of the charge being untrue. Scarlett and Tindal, contrá. The Court have, in many instances, granted informations for libels, on a number of individuals, without requiring any affidavit of the falsehood of the charge. In Michaelmas, 13 Geo. 2. 1739, such an information was granted against M. Jenour, the printer of the Daily Advertizer, for publishing a libel against the Directors of the East India Company; and this application was supported by affidavits, stating the purchase of the newspaper, and an acknowledgment by the defendant that he had printed it. In Hilary term, 28 Geo. 2. 1755, a similar information was granted against A. Alderton, for writing and publishing a libel on the justices of the peace for the county of Suffolk, in an advertisement respecting the expenditure of money in the hands of the county treasurer. The only affidavit in support of the application was, that of the printer of the newspaper, that he had received the advertisement from the defendant for publication. So in Hilary term, 15 Geo. 3., such an information was granted against R. Holloway and G. Allen, for printing and publishing a libel upon the justices of the peace of the county of Middlesex, usually sitting by rotation in Lichfield-street, in a pamphlet entitled The Rat-trap, charging charging them with ignorance and corruption in the execution of their office. This rule was granted upon an affidavit, stating the purchase of the pamphlet from one of the defendants, and that the other acknowledged himself to be the author, and that several gentlemen named usually sat, by rotation, as justices at a public office in Lichfield-street. It is clear, too, from Rex v. Osborn, 2 Barnardiston, 138. 166. (a), that the Court will grant a criminal information for a libel reflecting on a public body. Rule absolute. (a) See this case also in a note in 2 Swanst. Rep. 503, 1822. The KING against WILLIAMS. DIXON against REID. Thursday, and Where a ship ACTION upon a policy of insurance on ship cargo, at and from Sierra Leone to a port of charge in Great Britain; 2000l. upon ship and 3000l. upon the cargo, valuing wood at 127. per load. plaintiff, on the trial of the cause, at the London dis The and cargo was barratrously taken out of her course by the crew, and the ship and part of sit- the cargo sold, and the remain upon sel: Held, that this was a total go from the tings after last Michaelmas term, had obtained a verdict der sent home by another vesfor a total loss by barratry, and the underwriters, a threat of execution, paid as for a total loss. A rule loss of the car nisi had been obtained, calling on the plaintiff to shew time of the committing of cause why the underwriters should not be allowed the the act of bar amount at which that part of the cargo which arrived in ratry. London had been valued by the policy, subject to the charges thereon, together with the sums paid out of the proceeds of the ship and cargo at Barbadoes, for wages, &c. and why so much as the said two sums should Rr3 amount 1822. DIXON against REID. amount to, should not be paid back by the assured to the underwriters, out of the money paid over to them, or why, in default thereof, the consolidation rule should not be opened and a further trial be had. The following facts now appeared upon the affidavits. The ship received on board, at Sierra Leone, 233 logs of timber, being about 260 loads, and sailed from thence on her voyage, on the 8th March, 1820, but was barratrously taken by the crew to Barbadoes, where she arrived on the 28th April, and the ship was condemned and sold, and 47 logs of timber were also sold, to pay the charges incurred there, and the remaining 186 logs were forwarded to London by another vessel, which arrived in August, 1820. The insured abandoned to the underwriters. Upon the arrival of the 186 logs in this country, the market price of timber being then 10l. or 117. per load, the plaintiff proposed to settle the loss upon that part of the cargo at 691. 9s. 6d. per cent. The underwriters not consenting to it at that time, the market price of timber afterwards fell, and the 186 logs were, on the 27th April, 1821, sold, (but not by the plaintiff,) at the rate of about 67. per load; and the loss actually paid by the underwriters on the cargo, amounted to 937. 12s. 6d. per cent. Scarlett and F. Pollock now shewed cause. The question is, whether, upon the facts proved, this was to be considered a total loss, with benefit of salvage, or merely an average loss. If it was a loss of the latter description, the plaintiffs can only recover for the damage they have sustained by the loss of the 47 logs at Barbadoes. If, on the other hand, it be a total loss, with benefit of salvage, then the plaintiffs are entitled to to recover the sum which the underwriters have actually paid. They were then stopped by the Court. The Solicitor-General and Puller, contra. This was only an average loss. It is quite clear, that if the ship had been driven out of her course by tempestuous weather to Barbadoes, and had been there condemned and sold, and a part of the cargo also sold, and the rest transhipped, and the voyage, as to the latter part, thereby retarded, that would have been only an average and not a total loss. Glennie v. London Assurance Company. (a) Anderson v. Wallis. (b) Hunt v. The Royal Exchange Assurance Company. (c) In the latter case it was expressly held, that a loss of voyage for the season by the perils of the sea, was not a ground of abandonment upon a policy on goods, with a clause of warranty, free from average, where the cargo is in safety, and not of so perishable nature as to make the loss of the voyage a loss of the commodity. Now here, the commodity was not of a perishable nature; it was not deteriorated in value by any of the perils insured against, but merely by the fall of price, for which the underwriters are not liable. It can make no difference, whether the ship be retarded in her voyage by the perils of the sea, or by the barratry of the master or mariners; the underwriter having expressly insured against this description of peril. ABBOTT C. J. I am of opinion, that this is a case of a total loss, with benefit of salvage. The case is plainly distinguishable from all the cases which have (a) 2 M. & S. 571. (b) M. & S. 240. (c) 5 M. & S. 47. Rr 4 been 1822. DIXON against REID. 1822. DIXON against Reid. been cited in argument, where the ship has been driven out of her course by the perils of the sea, and the voyage thereby retarded. In those cases, the cargo was, during the whole time, in the possession of the assured. Here by the fraud and barratry of the master and mariners, the cargo was taken out of the possession of the assured. From that time it became to them a total loss. The payment of the wages at Barbadoes, and the sending home the 186 logs, were not acts of the assured, or of any person authorised by them. I think, therefore, that this was a total and not an average loss, and, consequently, this rule must be discharged. Rule discharged. (a) (a) See Falkner v. Ritchie, 2 M. & S. 290. as to an insurance on ship. Friday, DYSON and Another against COLLICK. RESPASS for breaking and entering part of a cut The contractors TRESPASS for making a navigable canal having, with the permission of the owner of the soil, erected a dam of earth and wood upon his close, across a stream there, for the purpose their work, have a possession sufficient to entitle them to maintain trespass against a wrong doer. or watercourse, belonging to the plaintiffs, in the county of Sussex, and breaking down a dam of the plaintiffs, then being in and across the said part of the said cut or watercourse belonging to the plaintiffs, which cut or watercourse led from the Lavant through closes of meadow-land near to a certain cut or branch of completing of a canal, which the plaintiffs were then making, under a contract made by them with the company of proprietors of the Portsmouth and Arundel Navigation, by virtue of an act of the 57 G. 3. for making a navigable canal from the river Arun unto Chichester harbour, and from thence to Langstone and Portsmouth har bours, |