1822.

CARTWRIGHT

WRIGHT.

article of that creed, has laid it down as a maxim, that "we must, in fighting the enemy, not reject the use of against even despicable and detestable men," Cobbett, v. 32. p. 82. The libel as set forth in the declaration omitted the words "(see No. 195.,)" and the words "Cobbett, v. 32. p. 82." The Lord Chief Justice was of opinion, that this was a fatal variance, and the plaintiff was nonsuited. And now,

Denman moved for a new trial. The omission does not alter the sense, for the defendant asserts the libellous matter respecting the plaintiff; and the references do not alter that they only shew that the defendant in speaking of the plaintiff, has adopted the language of another person. If so, Tabart v. Tipper (a) is an authority to shew, that the omission of that which does not alter the sense of the remainder is not fatal. He also referred to Bell v. Byrne. (b)

ABBOTT C. J. I thought at the trial, and I am still of the same opinion, that this was a fatal variance inasmuch as the meaning of the paragraph given in evidence materially differs from that set out in the declaration. Reading the declaration, I should understand the libel as meaning, that the defendant had himself made the assertions there stated respecting the plaintiff. But when the libel itself is produced, and I find from the reference there contained, that it is a paragraph in tended to expose the conduct, not of the plaintiff, but of Mr. Cobbett, it then turns out, that in truth these assertions are made respecting the plaintiff, not by the defendant, but by Mr. Cobbett. The meaning, therefore,

(a) 1 Cump. N. P. C. 555.

(b) 13 East, 554.

of

of the two paragraphs is different, and the nonsuit is right.

BAYLEY J. The case of Tabart v. Tipper establishes, that a mere omission in setting out part of a libel is not fatal, unless the sense of that which is set out is thereby varied. Here there are two omissions, and the sense is thereby altered. For that which appears by the declaration to be the defendant's observation, turns out when the omissions are supplied to be the assertion of Mr. Cobbett respecting the plaintiff: and that according to Bell v. Byrne is a fatal variance.

HOLROYD J. concurred.

1822.

CARTWRIGHT against WRIGHT.

Rule refused. (a).

(a) Best J. was absent at Chambers.

FREEMAN and Another against The EAST INDIA Saturday,

Company.

April 27th.

The captain of

a ship has no

authority to sell

the cargo, ex

apcept in cases of

TROVER for forty-two chests of indigo. Plea, a general issue. At the trial, before Abbott C. J.,at the sittings after last Hilary term, the following peared to be the facts of the case. The goods in tion, which were the property of the plaintiffs, were the course of a shipped at Calcutta, on board the Cerberus, for England:

absolute neces

ques- sity; and there

fore, where in

oia the ship

voyage from
India
was wrecked off

the Cape of Good Hope; and some indigo, which was part of the cargo, was saved, and the same was there sold by public auction, by the authority of the captain, acting bonâ fide according to the best of his judgment for the benefit of all persons concerned; but the jury found that there was no absolute necessity for the sale: Held that the purchaser at such sale acquired no title, and the indigo having been sent to this country, the original owners were held entitled to recover its value.

the

1822.

FREEMAN against

The EAST IN

the vessel was wrecked off the Cape of Good Hope, and the greater part of the cargo was lost; 252 chests of indigo, however, were saved; and it did not appear DIA Company. that any of them was materially damaged. The fortytwo chests, which were the subject of the present action, were perfectly sound when they arrived in England. The indigo was sold by public auction at the Cape of Good Hope, being advertised as part of the cargo of the Cerberus, by order of the captain, who acted bonâ fide according to the best of his judgment, and with a view to the benefit of all parties concerned. The vendees afterwards shipped the same to England, and they were deposited in the warehouses of the East India Company. The action was brought to try the right to the property, the purchasers having indemnified the present defendants. The Lord Chief Justice was of opinion, that the captain of a ship was not justified in selling any part of his cargo, except in case of absolute necessity; and he left it to the jury to say, whether, under the circumstances, there was such a necessity. A verdict having been found for the plaintiffs,

The Solicitor-General now moved for a new trial, and contended, first, that the captain, under the circumstances, had authority to sell the cargo; and, secondly, that the sale having been in market overt, the property was thereby transferred to the vendee. It must be admitted that, though the captain is not the agent of the owners of the cargo, and that he is to be considered, as to them, a mere depositary and common carrier; yet, under special circumstances, the character of agent and supercargo is forced upon him by the general policy of the law. The law is so laid down by Lord Stowell in

the

the case of the Gratitudine. (a) That learned Judge there states that, "in some cases, the captain must exercise the discretion of an authorized agent over the cargo, as well in the prosecution of the voyage at sea, and in intermediate ports into which he may be compelled to enter;" and then he mentions, as instances in the prosecution of the voyage, the case of throwing parts of the cargo overboard at sea, and of ransom by the general maritime law; and afterwards he puts an instance, in which the master, while in an intermediate port, has the same authority forced upon him. The case put is that of a ship driven into port with a perishable cargo, where the master can hold no correspondence with the proprietor, and the vessel is unable to proceed, or requires repairs to enable her to proceed in time. The learned Judge says, "In such emergencies the authority of agent is necessarily devolved upon him, unless it could be supposed to be the policy of the law that the cargo should be left to perish without care. What must be done? He must, in such case, exercise his judgment, whether it would be better to tranship the cargo, if he has the means, or to sell it. It is admitted in argument, that he is not absolutely bound to tranship; he may not have the means of transhipment; but even if he has, he may act for the best in deciding to sell; if he acts unwisely in that decision, still the foreign purchaser will be safe under his acts: if he had not the means of transhipping, he is under an obligation to sell, unless it can be said that he is under an obligation to let it perish." Now, in this case, the ship was totally lost. It appeared at the trial, that, at the time when the sale took place, there was no other vessel at the Cape of

(a) 3 Rob. Adm. Rep. 258.

1822.

FREEMAN against

The EAST IN

DIA Company.

Good

1822.

FREEMAN against

The EAST IN

DIA Company.

Good Hope, in which that part of the cargo which was saved could be transmitted to England. It is true, that vessels in their way to England were expected, and arrived within a few weeks. At all events, it was for the captain to exercise his judgment, bonâ fide, whether it was better to tranship or to sell. It is admitted, that he did in this case act honestly; and, according to the law as laid down by Lord Stowell, a foreign purchaser has a good title to the property. In the case of Reid v. Darby (a), the Court of K. B. were of opinion, that the captain has no right to sell a ship reported, upon survey, not to be seaworthy, if he could have repaired it, and continued the voyage. Indeed, if a captain is not at liberty, under any circumstances, to sell the cargo, it will be impossible to find purchasers for cargoes in case of wreck. How can the purchaser learn whether the captain has any special authority to sell the cargo? The true question, therefore, which should have been left to the jury, was, whether, in this case, the captain had acted bonâ fide according to the best of his judgment, in making the sale. But, secondly, this was a sale in market overt; and by the law of Holland, which prevails at the Cape of Good Hope, such a sale transfers the property to a vendee; and for this he cited Van Leeuwen's Commentaries on the Roman Dutch Law, p. 400.

ABBOTT C. J. The case of the Gratitudine, which has been cited, was one where there was an hypothecation of the cargo by the master, for the purpose of enabling the ship to go on with her voyage. But here the case was quite different, for the vessel having been wrecked, the object of the voyage was entirely at an (a) 10 East, 143.

end;