p.1 Water Spout on Lake Erie [Cleveland Herald]
p.2 [from the Toronto Colonist]
HAM vs. MACPHERSON et al
This is one of several actions brought by Messrs. Smith & Crooks, Solicitors, against the above defendants, to recover damages for the loss of produce at Kingston in April 1840, when their stores with their contents were destroyed by accident.
The case was one of Special Assumpsit, and came on before Judge Hagerman at the last Newcastle District Assizes and a special jury.
Council for the Plaintiff, H.J. Boulton, Esq., G.M. Boswell, Esq., Q.C., Robert P. Crooks, Esq., and James Smith, Esq.
For the Defendants, the Attorney General, Henry Sherwood, Esq., Q.C., Thomas Kirkpatrick, Esq., and John A. Macdonald, Esq.
The case was opened by the plaintiffs' senior counsel, who stated that the defendants were charged with the receipt of the property as common carriers at Cobourg, in the Newcastle District, and that for certain reward to them to be paid in that behalf, they undertook safely and securely to deliver the property to the plaintiff at Montreal in Lower Canada.
Breach - that they did not deliver, in the first count of plaintiffs declaration. And in the second count they were charged with the receipt of the property at Kingston to be delivered at Montreal, concluding the same as on the first count.
To these the defendants pleaded the general issue, which put in issue all the material allegations in plaintiffs declaration.
The evidence adduced did not support the first count of the declaration, which was therefore abandoned by the plaintiffs counsel.
Not so, however, on the second. The plaintiff proved that on or about the 14th April, 1840, the defendants received certain produce of the plaintiff at Kingston, to be forwarded by them to Montreal - that on the 18th following, a storm arose, and the American steamer Telegraph was obliged to get up steam to move away from the wharf, to avoid being injured, - that when in the act of getting under way, a spark of fire from the steamer fell into or about defendants' stores, and set them on fire, when the whole were consumed with their contents, and amongst which was the property of the plaintiff, for the recovery for the loss of which the present action was brought.
The value of the property was proved, and the case closed for the plaintiff, when the Attorney General opened for the defendants, and relied upon two grounds for defence: the first was, that the defendants had notified the plaintiff not to send his produce to them so early in the season, and before the navigation was opened - and that therefore they should not be charged with the loss, - and the second was, that the property when received in the stores of the defendants was received by them as warehousemen, and not as carriers, and that they were to receive no reward therefore, - that unless gross negligence or misfeezance on their part were proved, that they were not liable.
On the first point the learned Judge was of opinion that the subsequent receipt of the property by the defendants was a waiver of the notice.
And on the second ground, that the defendants were only warehousemen, that could not avail them, for it was in face of plain and direct testimony, that the defendants had received this property to be forwarded, and not for the purpose of being stored merely, and that as soon as the receipt was proved their liability of common carrier arose, - and that from that time until the delivery of the produce at its place of destination to the plaintiff or his consignee, that they were liable for all loss or damage thereto, with the exception of losses or damage occasioned by the act of God or the King's enemies, neither of which adjudged cases had decided could a loss by an accidental fire such as occasioned the loss in this instance be classed under.
The Jury brought in a verdict for the plaintiff, and damages to the amount claimed.
The River Mail Steamers, will, till the close of the Navigation, leave this Port for Dickenson's Landing, at half past 7 A.M. instead of 9 as heretofore.
Lake and River Steam Boat Office,
Kingston, 6th November, 1841.