September 4, 1909.]
underwriters and the owner of the goods." It is to be observed that the reason for the distinction between public and private lighters seems to have been based, not on the ground that the goods had passed into the custody of the con- signee, which was expressly pointed out to be an unsound distinction, but whether the risk of the underwriters was increased by using lighters which might perhaps not be well-fitted for dangerous or unusually risks operations, as the landing in that case seems to have been. *In Strong v. Natally an ordinary lighterman was employed; but the underwriters were held discharged, not because the consignee had hired a lighter, but because he had dispensed with the obligation of the lighterman to take charge of them during the night, and took them into his own custody." He had discharged the lighterman, and placed himself in the same situation as if the goods had been actually landed and delivered and having so done he might have kept them in the lighter for a week, for he had as much control over them as if they had been in his custody for that period. In Paul
CHINA OVERLAND TRADE REPORT, ther than to say it might have been given by Mr. Ho without authority. But the godown manager wants us to believe that no application of any sort, kind or description was made, and that the plaintiffs' agents deliberately lay alongside so as to keep the lighterman his full period of hire in the chance of selling the oil, and never intended to store it at all. The exam- ination of the godown book as to the amount of work done by the godown on the days in ques- tion, as well as the answers I succeeded in getting from him as to the normal course of work at the godown wharf, so entirely bear out the story told by the plaintiff's witnesses, that I am compelled to accept the plaintiff's story. I, therefore, give judgment for plaintiff
with costs.
Mrlade asked for interest on the money out of which they had been kept for a long time. His Lordship-The Court has discretion to give interest.
Mr. Slade-Yes, I don't ask for it as a right. His Lordship-What are the facts ? Mr. Slade We had to sue them in order to get our money and the order should carry interest.
His Lordship--I don't think this is a case in which I can give interest
Mr. Slade - The money was payable under a contract, and they have kept the money in their own hands, and have had the benefit of it up to this time.
His Lordship I don't think I have ever given interest.
Mr. lade-I suggest your Lordship amends your procedure in this case. It is laid down in the old statute of William the Fourth, which was passed to remedy the obvious defects in the law.
His Lordship-I will hear what Mr. McNeill has to say.
Mr. McNeill submitted that it was in his Lordship's discretion.
His Lordship said he would consider the point in chambers. The costs of the commis- sion were also reserved.
Wednesday, September 1st.
CRIMINAL CONVERSATION-VERDICT.
The hearing was continued of the action in which Captain T. A. Mitchell, of the Indo-China Steam Navigation Co., proceeded against John Lemm to recover $15,000, general moral damages, and $17,187.23 special damages for money paid and payable in connection with divorce proceedings in Edinburgh was concluded. Sir Henry Herkeley, K.C. instructed by Mr. H. W. Looker (of Messrs. Deacon, Looker ad Deacon) appeared for the plaintiff, while the defendant was represented by Mr. M. W. Slade, who was instructed by Mr. P. M. Hodgson (of Messrs. Ewens and Harston).
Insurance Co. of North America Justice Matthew said that Sparrow v. Carruthers was an extraordinary decision to arrive at, so agreeing with the judges in Hurry's case. He seems to have thought the same of Strong v. Natally, which, I think, may be supported on another ground. He added that the "risk of craft' clause must cover carriage in a hired lighter, and why should it not also cover it in a lighter belonging to the assured, the person most concerned for the safety of the cargo? There seems to be a de- finite principle derivable from these cases. A hired lighter is within the meaning of craft, in the "rish of craft clause”: the much-doubted case of Sparrow v. Carruthers draws the dis- tinction, not between private and public lighters, but between a hired lighter and the consignee's lighter. But if the putting them on any lighter can be construed into taking possession of the goods by the consignee in such a way that it is tantamount to terminating the normal course of voyage, that is by ship plus lighter from the ship to the shore, then the risk has terminated too. Applying this to the facts of this case; undoubtedly the voyage, and so the risk, was terminated in the case of the 200 baskets sold from the lighter. So, too, if on the evidence I come to the conclusion that the con- signee intended, not to store the remainder in the godown, but to sell them before storing, and for this purpose to store them temporarily in the lighter, then the risk would also have come to an end. That he would have sold them if a customer had come along is clear, but that is not the question; I must be satisfied that he did in fact so delay the transit to the godowns in the lighter, as to amount to a taking control of them for purposes other thun|| those incidental to the voyage, of ship plus lighter. This brings me to the last point of delay! The landing must be in reasonable time: this point differs somewhat in detail from a de- Mr. Slade, in opening the case for the defence, liberate termination of the voyage. I think, as I reminded the jury that they were bound to give have already said, that I am bound to hold that their verdict according to the evidence. That the risk covered the transit by lighter to one of meant according to the evidence as it was given these godowns, and that it must further include in the Court and not according to such rumours, such delay as is involved by the normal process insinuations or stories which they might have of landing the oil into these godowns. Now, heard outside. In a little place like Hongkong here again, there is one clear case where delays it was almost impossible for seven men to be would release the underwriter. Supposing one got together to adjudicate upon a case which of the go owns, or even both were full, and had excited any public interest at all without the lighterman lay alongside hoping for a their having heard a number of stories, rumours chance of getting his oil taken in, clearly the and insinuations against one party or another risk could not cover such a case. But suppose which necessarily had an effect upon their that in the normal course of things the lighter- minds. If they had heard stories to a man, or the consignee, applied for space, and he man's discredit for years past anyone was in- was told, not that space would be reserved be-clined to think badly of him. But when they forehand, but that there was room, and his bat- load would be attended to in due course, ie., suppose it were first come first served, always coupled with a promise that he would be served, then I am clear that this would be in the normal course of business, and would be covered by the risk. Now I am going to make a short cut through the evidence. The plaintiff's agents in Canton were in the habit of storing their oil in quan tities of 200 to 400 baskets, sometimes even of much smaller quantities. The defendants want me to believe that in this case they were going to depart from, I will not say their usual custom, because that is not proved, but from what they very frequently did. I put the aetter on one side; I am not bound to go for
The jurors were: -Messrs. E. J. Hughes (foreman), J. W. Bolles, E. Shellim, M. Northcote, G. C. Moxon and E. H. Hinds.
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came into a court of law and they were on their oath as jurymen they must endeavour to do that exceedingly difficult thing to look at the evidence from a detached point of view and to endeavour to consider that evidence fairly and get rid of such prejudices as they might hold, The facts of the case were not very long or com- plicated. Mrs. Mitchell and Mr. Lemm made each others' acquaintance on board the steamship which carried them both from Australia to Hongkong in the year 1898 They were both born in New South Wales and had lived for the greater portion of their lives in that Colony, They had not met before, but it appeared that their respective fathers were friends and that Mrs. Mitchell knew Mr. Lemm's father. So
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there was a family connection, so to speak certain amount of community of interest be tween them. Mrs Mitchell was travelling with her 10 year-old daughter and Mr. Lemm was with his wife and two children. The two parties became friendly and in due course they reached Hongkong. Mr. and Mrs. Lemm went to live in a house at Robinson Road, Hongkong, and the families continued on friendly terms. The first Mrs. Lemm had been represented to the jury as an invalid. Captain Mitchell had It was true in a made rather a point of that. sense, but not in the sense in which the observation was made to the jury. She was a lady of weak health undeniably, but during the time she was in Hongkong she was never laid up more than a day or two at a time, and she was always going about and living the ordinary life of a lady of her position in the Colony. The climate did not agree with her, undoubtedly, and she was by no means robust, but they could not say that she was an invalid in the sense of being materially incapacitated: In November, 1888, Mrs. Lemm's health broke down, and it was decided that she and her children should go to the healthier climate of Australia. Consequently, Mr. Lemm was left alone in his house in Robinson Road, but it was too big for him, and he and Mr. Watkins arranged to mess together in Kowloon, where it would be cheaper to live; Mr. Watkins had taken the house No. 8, Granville Road, and Mr. Lemm got a tenant for his house in Robinson Road, as the wife of the outgoing tenant was ill and could not. leave the house at the stated time; Mrs, Mitchell, who was then staying in Granville Road, offered Mr. Lemm her spare room, and he stayed with her for 24 or 25 days until his house was ready, meanwhile the two gentlemen had made arrangements with Mrs. Mitchell to take their meals or have them sent over. Later in the same year the mess was increased by the addition
of Mr. Frederick Lemm, Mr. Lemm's brother. That was the arrangement which continued during 1899. What was the evidence that adult- ery had been committed? The evidence was that Lemm stayed for almost a month in Mr. Mitchell's honse. She was not alone. She had with her her daughter, and if a man went to live in a married woman's house under such circumstances and was suspected of adultery then Heaven 'help poor unprotected men! It was ridiculous to ask the jury to believe those two people were guilty of impropriety. There was no more efficient chaperon for, any woman than her own daughter, a girl of eleven or twelve years. They could hardly conceive a woman so depraved as to venture to do anything improper which might come to the notice of a girl of such tender years. There was not the slightest secrecy about the arrangement. was known to Captain Mitchell, who dined with them and who expressed his approval, as it gave Mrs Mitchell an opportunity of in creasing her income, as they were not too well off at that time. There was not a jot or tittle before the jury to prove familiarity of any kind between Mr. Lemm and Mrs Mitchell. It had only been shown that they had been often in company. There had been no evidence of any endearing expressions, or kissing or embracing, yet the jury were asked to infer from the fact of those two people being together that they had committed adultery. If they got rid from their minds of the overwhelming pre- judice against Lemm, they could not fail to come to the conclusion that there was no evidence of guilty relations between the parties. Tracing the course of events in 1900, Counsel referred to the ricsha incident, which Captain Mitchell had dressed up for their consumption. Captain Mitchell said he came up from the south on a Sunday night, and the ricsha came up the house after Mrs. Mitchell and he had retired. But Mr. Lemm was then living in Granville. Road, three doors off, and there was nothing extraordinary in his calling at the time. Captain Mitchell said nothing at the time to Mr. Lemm He had dressed it up about the incident. for the consumption of the jury. He was undeniably hostile to Mr, Lemm and was deter- mined to recoup himself at Lemm's ex- pense for his costs in connection with the divorce.
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His imagination had come to the help of his memory, and the result was the story he told them. Mr. Slade then criticised tlie statements of the "willing friend," Captain
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