CO885(2-3) — Page 164

PUBLIC RECORD OFFICE

Reference :-

C.O.885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

3 PUBLIC RECORD OFFICE, LONDON

No. 77.

Passengers Art. Consul cannot

passengers sent

82

regulate the temporal affairs of Churches and Chapels of the United Church of England and Ireland," in case we should be of opinion that its provisions have any bearing on these questions.

In obedience to your commands we have the honour to report that we are of opinion that the provisions of the Act will acquire legal validity if the assent of the Crown were given thereto, and that neither members of the licensed Clergy and Laity meeting in Assembly in the manner provided by Section 1 of the Act, nor the Bishop presiding thereat, would be liable to any legal penalty.

We are further of opinion that if any Commission established under Section 3 of the Act were to impose the penalty of suspension from a benefice under Section 3, the clergyman so suspended would not have any legal remedy against the members of the Commission or the Bishop, on account of the invalidity of the Act.

We have, &c.

The Right Hon. H. Labouchere, M.P.

&c.

&c.

&c.

(Signed)

No. 77.

J. D. HARDING. A. E. COCKBURN. RICHARD BETHELL.

Copy of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to Mr. MERIVALE.

Temple, August 13, 1855.

SIR,

WE were favoured with your letter of the 20th ultimo, in which you stated obtain payment for that you were directed by Lord John Russell to transmit to us the accompanying case, which had been drawn up by the Colonial Land and Emigration Cominis- sioners, respecting the liability of Messrs. Gibbs, Bright and Co., the owners of the ship "Condor,” which was lost off Pernambuco, to repay the sum of 1,1131. expended in sending home the passengers belonging to that vessel, in conformity with the provisions of the Passengers Act; and you were to request that we would favour his Lordship with our opinion on the points which had been raised by the Commissioners as set forth in the case.

buck by him, on joint speculation with the master of the ship, with a view to make protis by the transaction. But quære under the special cireum- stances of the case.

In obedience to your request, we have perused and considered the papers transmitted to us, and beg to report that it appears upon the statement of Mr. Consul Cowper himself, that a joint speculation was entered into between him and the master of the “Condor,” to buy a ship, and use ber for the purpose of carrying home the passengers, intending to charge the owners of the "Condor" with the money recoverable under the Passengers Act, and to divide the profits of this proceeding between themselves.

It is quite clear that in so acting the master was guilty of a dereliction of duty towards his employers, and that his participation in the transaction entitles his employers, Messrs. Gibbs, Bright and Co., to say that the passengers were brought home by their own servant, and not under the provisions of the Passengers Act.

The claim of the Consul cannot be put higher than that of his co-partner the master.

We are, therefore, of opinion that the Consul was not legally entitled to to claim and receive payment from the Treasury, for the passengers so sent home by him; and that no proceedings ought to be taken on the past of the Crown against Messrs. Gibbs, Bright and Co.

Herman Merivale, Esq.,

&c.

&c. &c.

We have, &c. (Signed)

A. E. COCKBURN.

RICHARD BETHELL.

•

SIR,

83

No. 78.

COPY of a LETTER from the ATTORNEY-GENERAL to Mr. MERIVALE.

Temple, August 30, 1856.

No. 78.

passengers sent

I WAS favoured with your letter of the 20th of March last, in which you Passengers Act. stated that, with reference to the Report received from the Solicitor-General and Consul cannot myself, dated the 13th of August, 1855, respecting the liability of Messrs. obtain payment for Gibbs, Bright, and Co., owners of the ship "Condor," to repay certain expenses back by him, on incurred for sending home passengers wrecked in that vessel, you were directed joint speculation by Mr. Secretary Labonchiere to transmit to me the accompanying copy of an with the master of explanatory letter which had been addressed by Her Majesty's Consul at the ship, with a Pernambuco to the Secretary of State for Foreign Affairs, together with a copy by the transaction.

view to make profil of a report on the subject from the Emigration Commissioners.

But quære under

You were also pleased to request that, with the Solicitor-General, I would the special circumu- take the papers into consideration, and with reference more especially to the stances of the case. remarks in the four concluding paragraphs of the Commissioners' report, that I would favour you by stating whether or not the facts and explanations now furnished lead me to modify my opinion of the 13th of August; or whether, supposing that I still adhered to that opinion, I considered that the items for provisions and stores specified by the Commissioners, and amounting to 5381. Os. 11d., including a charge of 831. 1s. 6d. for clothing, can be recovered from Messrs. Gibbs, Bright, and Co., notwithstanding that they may not be liable for the passage money.

In obedience to Mr. Secretary Labouchere's request, I have perused the several documents submitted, and have the honour to report-

That upon the perusal of the further papers now submitted to us, and on a further consideration of this case, I am disposed to doubt the propriety of our former opinion.

The passengers of the "Condor" having been landed from that vessel at Pernambuco, were, under the 49th section of the "Passengers Act," to be forwarded to their port of destination by the British Consul.

Unable to hire a vessel for the purpose, and, therefore, unable to forward them by ordinary means, the Consul had no alternative but to purchase a vessel or leave the passengers at Pernambuco.

But he had no authority to purchase a vessel on the public account, and he had not sufficient means of his own: nor, indeed, if he had such means, would he have been under any obligation so to employ them.

On the other hand, the Captain having lost his ship, was not under any liability, so far as public duty was concerned, to provide a vessel, as the Consul

was.

Under these circumstances, the Consul proposed to the Captain to join with him in purchasing the ship as a joint speculation, for the purpose of her being employed by him (the Consul) in forwarding the passengers according to the "Passengers Act."

The captain having joined accordingly, the Consul employs the vessel for forwarding the passengers to their destination, which it was the Consul's duty to accomplish.

It may be very inconvenient and improper that Consular officers should enter into speculations in the discharge of a duty thus imposed on them, and there may be very good reason why they should be prohibited by their instruc- tions from so doing; though, in this particular case, if the Consul had not so done, the passengers of the "Condor" might, perhaps, still have been at Pernambuco; but it seems to me that there is no reason why, in the present case, the Consul, having sent the passengers home, should not be entitled to be paid for them as any one else would have been, or as he would have been, had he hired a vessel for the purpose.

Then if the Consul would have been entitled to be paid had he bought the vessel solely with his own money on his own account, I cannot think that it makes any difference that the captain went shures with him in the purchase.

The duty is thrown on the Consul. If he discharges it he is entitled to be compensated. He does discharge it, but he obtained the means to do so by entering into a partnership with the captain.

Y

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