Chalmers, Mackintosh d: Ca. v. Madden.
This was an action in which the plaintiffs claimed from the defendant, Captain Madden, of the ship James Shepherd, the sum of 62.34, for alleged loss and damage to certain cases of wine, of which they were the cou-
'Mr. Macxrstosm read a statement of his case, and being afterwards sworn, deposed—Tam partner in plaintiffs' firm.' We were consignees of 103 cases of wine by the defendant's ship. They were brought up before '5th May, with the exception of 18 cases. These 18 the Tug and Lighter Company would not take possession of, sleging that they were damaged. They were rejected by the boatmen in their employ. Isent the note of 5th June {produced) to Mr. 'T. 8. Pemberton, the superintendent of the Shanghai Tag and Lighter Company, requesting him to examine the 18 focept any agreement which ho mage wit the cases said to be damaged, and ing to
captain. Next day the 18 cases were sent to our godown, with a memorandum from Mr. Pemberton, saying that he bad examined 8 eases which appeared to be ed, and found there were 11 bottles short and one empty. The other 10 cases, he said, had not been examined, as the captain and he both agreed that they were in sound condition, and had not been opened. On opening the 8 cases in our godown, we found 14 bottles short, 4 empty, and 5 broken, Lat once sent to Mr. Capt. Madden with him. Mr. Pemberton Pemberton, and requested him to, bring up came alone, Captain Madden refused to come. After waiting a few days, I had the other 10 cases opened, and found 60 bottles broken, Bottles short, and two bottles of which the corks had been taken out, the contents drank, and the empty bottles put back. The shi agents were willing to pay for 12 bottles, but amount remaining, F 51.34, would be the Trefused to jo for that number. The balance due. All the 18 cases, when I first saw them at the godown, were in bad condition. They showed signs of having been tampered with, The straps had been cut, and the heads lifted up. Of course, the 8 cases that had been examined at the wharf we knew would show signs of having been opened, but the 10 that were not examined there had also been tampered with. I thought it was the duty of Captain Madden and Mr. Pemberton to examine all the cases.
His Hoxour said Capt. Madden was under no obligation whatever, so far as the plai were concerned, to examine any of the cases.
Mr, Mackrstosi said he thought Captain Madden ought not to try and evade his res-Eieer tile cases were faulty. As the case mnsibility in this case, as he believed he would have to be referred to the owners of the ship at home, he would like to put Capt. Madden in the box, and ask him a few questions.
Captain Mappex, sworn, and examined by Mr. Mackintosh.
Mr. Mackixtos—Are you prepared to swear that the 10 cases, which you did not examine at the Wharf, were all in good condition?
Captain Manpex—They were to the best of my knowledge.
Mr, Mackrstosn—Did you take " memo-random of the numbers of these damaged cases?
Captain Mappex—I did.
Mr, Macxixtosa—Will you be good enough to read them?
Captain Mappes, referring to his note book, found he had only the numbers of the cases upon which he had agreed to pay, but he were in good order.
Mr. Macknssosu then requested him to look at his bill of lading, on the face of which itwas stated that No. 7,234, one of these 10 cases, had been challenged on coming on board, as being 2 bottles short.
Captain MADDEN said—I did not seo that cease when it was puton board. 'To my knowledge I never saw them till I examined them with Mr. Pemberton. I did not refer to my Dill of lading, though Thad my copy. It no part of my' duty to examine cases for you, you have your own servants to do that.
Mr. MAcxnvrosu said he thought it was part of his duty to do what he knew to be Fight on behalf of the owners, Duamfoxp produced the subjoined letter, written by the plaintiffs "To Captain Madden, James Shepherd. "June Sth, 1874.
"Dear Sir,—Mr. Pemberton will examin for us 18 cases of wine, marks 'R. F, & Ca., G. C.,' which are said' to be damaged, and we will abide by any agreement he may make,—Cuaarers, Macxrstosm & Ca."
His Hoxovr said he could not go past that letter; and without calling upon the defendant, gave judgment in his favour.
Abe. Daoantoso applied for costs His Hoxour said there were no costs in such a case, beyond the costs of Court, which would include $2 for subpenaing Mr. Pemberton as a witness for the defendant, Tuly 28th.
Text read from the printed page and cleaned; old type leaves the occasional error.