p.2 From the Star
NEWCASTLE DISTRICT ASSIZES.
On the civil side the great object of interest was a case between Mr.Ham and Messrs. McPherson and Crane, the well known forwarders, and which case had been tried at our last Assizes when a verdict for 805 pounds was given for Plaintiff, but being argued in Banco a new trial was had, it was tried on Friday and the following is a report:-
Ham vs. Macpherson & Crane
This was a special jury case, to try which the following jury were sworn - Robert Waddell, John Parker, E. Barnum, P. Gross, F.B. Spillsbury, D.G. Hubbell, James Sculthorp, D. Brand and N. Mallory.
There were two counts, the first charging the Defendants with a liability as carriers between Kingston and Montreal, the second with a liability between Cobourg and Montreal, damages laid at 2,000 pounds. Mr. Boulton, with whom were, Mr. Boswell, Q.C., and Mr. Smith, opened the case, he stated that he did not think any difference on points of law would exist as the question had already been so fully argued, the only question would be as to matters of fact, he explained the liability of common carriers for all damages except those caused by the act of God or the Queen's enemies, he had heard the plea set up was that they (the defts.) had received the goods not as carriers but as warehousemen, in which case they would not be liable, but it would be plain that such was not the case, they never charged storage and their stores were only for the purpose of keeping produce forwarded to them from different ports to be sent on to Montreal; he maintained that they assumed the liability at Cobourg having expressly ordered a schooner to take Mr. Ham's produce.
H. Bennett, was captain of the schooner Commerce, knew the defendants who were forwarders at Kingston, the Commerce was owned by Mr. John McDonell, witness was never in the employ of defts., he was in the habit of freighting for them as for every forwarder in Kingston, and several other persons, in the spring of 1840 he was ordered to take a load of stone from Kingston to Cobourg and then proceed to Port Credit, where he was to get a load of staves for Mr. Counter, Mr. Kittson stopped him at Cobourg and told him to take in the flour, Mr. Counter had directed him to go for staves, does not know what control defendants had over the vessel, spoke to Macpherson who told him that they did not want any more produce as their stores were too full and that he had better get a load of lumber, stopped at Cobourg in place of going to Port Credit by order of Mr. Kittson, would have taken a load for anyone under the same circumstances, had much rather have a rolling load than lumber, received 400 bbls. Defendants' wharf whom he knew to be forwarders, no objection made to land them, had but one bill of lading which he signed as master of the vessel, and which he delivered in to Defendants' office, he left the flour and whiskey on the wharf, does not know where it was stored. Defendants' office was on the wharf, the property was consigned to McPherson & Crane, Kingston, to be forwarded to Montreal, but to whom there witness does not recollect; the bill stated it to be the property of G. Ham, defendants paid freight to Mr. McDonell.
(The notice to produce bill of freight admitted.)
Cross-examined by Mr. Sherwood - The bill was signed by witness at Kingston, Mr. Counter gave me no order for staves, but said I would get them, altered my voyage by order of the Harbour Master at Cobourg, Mr. Counter for whom I had carried staves before was to give me $20 a thousand, should have taken a load for anyone, it is the custom among schooners to take loading wherever they can get it, unless masters had express orders, all advantage went to Mr. McDonell, took a receipt for produce which he gave to McD. It was in April he arrived at Kingston, heard of the fire four days after at Port Dalhousie, thought it was four it might have been more; there was a large quantity of produce in defendants' store all winter and thinks it was on that account Defendants did not wish for any more, the navigation of the St. Lawrence was open before he arrived, was never down the Lachine Canal, before he left Kingston he went to defendants to see about freight on his way to Credit.
Re-examined by Mr. Boulton - Knows no agreement between McPherson and McDonell, such an agreement might be without his knowledge, does not know for a fact that McP. paid McD., McD. had the earnings of the vessel, which was afterwards seized and sold for his debts, defendants might have chartered the boat, in which case they would not have paid any freight to McD.
Mr. Routh proved letter from McPherson to Kittson, dated April 6th, 1840, requesting him to direct Capt. Bennett to take in a freight of wheat for Mr. Ham, as they had directed him to go to Credit for staves for Mr. Counter, as also a letter from Alex. Ferguson, who was considered a partner of defendants, the letter was dated April 21st, 1840, and addressed to Messrs. McGill & Co. acquainting them with the destruction of property.
Neil McMullen was in charge of Defendants' barges in 1840, took a barge down from Kingston to Montreal before the fire, of which he heard (line unreadable) Lachine Canal, through which no boat had passed, it was scattered stuff which had remained over winter that he took down, one barge had gone down before his, it was at the Cedars when he passed it.
Cross-examined by Mr. Draper - Found the only boat that had gone down before him at the Cedars, McPherson had no boats in Kingston, boats must come up through the Rideau, has heard that the first boat got up to Kingston towards the latter end of May.
E. Perry is a merchant, knows the defendants, who were in 1840 forwarders on the Lake, he believes they owned schooners, defendants' practice had been to forward from Ports on Lake Ontario, but this depended on special arrangements, in the Spring of 1840, the Flour Market opened at Montreal at 33 s. 3 d. per bl., knows nothing of the price of Whiskey, has forwarded through defendants to the amount of some thousands of barrels, does not recollect any charge for storage.
Cross-examined by Mr. Draper - 27 s. 6 d. would cover charges at Kingston, the expenses to Montreal were at least 3s 6 d. per barrel, the wharfage at Cobourg was, flour 4 d. per barrel, whiskey 6 d.
J. Calcutt is a distiller, whiskey was worth 1 s. 6 d. per gallon, had sold a good deal of it at that price in Kingston in 1840, the barrels usually contained from 50 to 56 gallons, and were worth 1 s. 6 d.
By Mr. Sherwood - Witness generally sent an agent to Kingston to sell his whiskey
L. Broughall is a cooper, made casks for plaintiff, sometimes charged 8 s. 9 d. but in consequence of the large quantity made charged only 7 s. 6 d.
J.S. Smith, proved interest to be 107 pounds 14 s. 4 d.
A. McFaul, lives at Wellington, thinks that in 1840, defendants were forwarders from Kingston to Montreal, but does not know they were from the Lakes, cannot state the earliest date barges went down in 1840, some of witness's produce had been sent down before the fire.
Cross-examined by Mr. Draper - Witness had a large quantity of goods which had remained all winter in the defendants' store and which goods would have had the precedence, knows it was not the custom to bring up the barges from Montreal till the Spring, here the case of the Plaintiff closed.
Mr. Sherwood then moved for a non-suit, 1st on the ground that no evidence had been offered to shew a contract, and 2ndly that this action should have been brought in the name of the consignee.
The Court held that the objection of Mr. Sherwood was not sufficient as it applied only to cases where the property was clearly vested in the consignee, and there was sufficient evidence to go to the jury in support of the action by the consignment of the property to defendants.
Mr. Draper, in one of the best specimens of forensic eloquence we have ever heard, argued the non-liability of the defendants as common carriers, he showed how hard a judgement it would be to compel the defendants to pay so heavily for what was not their own malfeasance, that to them the effects of the fire had been ruinous, they had lost an immensity of property themselves, he besought the jury if they found themselves constrained to give a verdict for the Plaintiff not to aggravate their cruel loss by giving interest also. "I envy not the feelings of the Plaintiff," and the honorable gentleman, "which could tempt him to make a demand, neither do I envy the counsel who is directed to set forth such a claim."
Mr. Kittson was Harbor Master in 1840, acted also as wharfinger and agent, received a letter from Defendants stating that they could not receive any more produce and requested him to acquaint their customers, the latter was dated 1st of April and received in due course of mail, knew that Mr. Ham and Mr. Clark did business with defendants, does not recollect communicating the letter to Mr. Ham, thinks he did to Mr. Clark.
Mr. Boulton - The wharfage at Cobourg is 4 d. per bl. on flour, and 6 d. on whiskey, does not know that Defendants are carriers on the Lake.
Mr. Watt - A great quantity of goods were remaining in defendants' stores during the winter of 1839-40, about 3,000 bbls., none of their boats wintered in Kingston, boats from Montreal to Kingston must pass through the Lachine, the Grenville and the Rideau Canals which are usually open from the 6th to the 8th of May, defendants are forwarders of Produce generally, never forward during winter, no property nor boats had arrived at Kingston from Montreal before the fire, Mr. Ham dealt with defendants, who in 1840 were forwarders between Kingston and Montreal, and confined there to only intermediate ports, the fire happened on the 18th of April, does not recollect having seen the produce in question, defendants kept their papers in an office on Counter's wharf which was burned, recollects a letter from Pl'ff to Def'ts the letter was kept in the office, it was received before the produce and contained a request to Defendants to relieve him as his mill was breaking down, it was received some days before the fire and believes it is the letter referred to by Mr. McP. in his to Mr. Kittson, the schooner Commerce was sent in conformity to the application of Mr. Ham, the produce arrived about the 18th, does not know where the fire commenced, defendants were not in a position to forward produce nor would they for a month, is quite sure the notice referred to by Mr. Kittson was written in consequence of inability to forward.
Cross-examined by Mr. Boswell - Is book-keeper, the business generally comes under his knowledge, there are several departments of book-keeping, witness then had the "up-freight shipping part," there being then no up-freight. I attended to all things, defendants kept letter books and the younger clerks copied letters, but all the clerks did it occasionally, letters received are filed, letters were left on Mr. McP.'s table for a few days after they were received, the table was in the same room in which witness wrote, saw Plaintiff's letter on the desk, generally read the letters laying there, did so to keep a train of business, recollects most distinctly reading Mr. Ham's letter, nothing in that letter saying he would be obliged to employ other persons to forward his produce, first told contents of letter to Mr. Craig at last assizes, with the exception of two boats built at Kingston, Mr. McP. had no opportunity to send produce down, the flour was under a shed or verandah, and the whiskey was on the wharf, a great deal of property was left out as they had no storage.
C. McDonnell is in the employ of defendants, knows of some flour and whiskey having been received by schooner Commerce, found the receipt, now produced among his brother John's papers. John was sole owner of the Commerce, which he sailed for his own benefit, at the time produce arrived no forwarders were in a state to carry, the first boat up arrived in Kingston on the 27th April, and those had been frozen in on the canal on their way up, the schooner would take in a freight for any one, defendants were forwarders between Kingston and Montreal, and could not at that time have forwarded produce.
Cross-examined by Mr. Boulton - Goods were received to be forwarded, his brother would give defendants the preference, there was no agreement.
Edward Browne was in the employ of defendants, saw letters from Mr. Ham before produce came, or before any produce could have been forwarded, defendants did all they could to make it known that they were not prepared to receive produce.
Col. Pearson gave an account of the fire.
Mr. Hunter, captain of the steam boat Bytown, proved being frozen in, in the Indian Lake up to the 17th April, before which time no boat could have passed through the canal.
Mr. Boswell then addressed the Jury at great length. He argued the liability of the defendants in their capacity of common carriers, and thought it strange that if the produce was taken merely to relieve Mr. Ham's mill, that whisky should have formed part of the cargo; he contended that the defendants were much better able to bear the loss than his client.
His Honor then charged the jury that if they, the defendants, were common carriers above Kingston, and that the goods were delivered to them in that capacity at Cobourg, they were then clearly liable; he did not think the evidence warranted such a conclusion; he left it to the jury to find from the evidence whether the goods had been received under any agreement, counting the liability, and mooted the question whether the effect of climate would not lessen the liability of common carriers for goods received by them, when the effect of frost would render it impossible that they could be forwarded; to this Mr. Boulton took exception by asking, in that case when the liability would naturally and legally commence.
The jury in a short time returned a verdict for 806 pounds 13s. 4d., throwing aside the interest.
The Navigation - It appears that many persons who are engaged in navigation on the lakes and rivers of what was Upper Canada, are entirely ignorant of the fact that there is a law to compel them to carry a light at night. The Act was passed on the 4th of March, 1837, and is entitled - "An Act to compel vessels to carry a light during the night, and to make sundry provisions to regulate the navigation of the waters of this Province ."
It enacts that "All Steam Boats, Schooners, Vessels and Rafts, that shall be navigated upon the lakes and rivers of this Province, and the British channel of the St. Lawrence river, between the port of Kingston and the eastern boundary of the Province, shall have affixed, and the person and persons commanding or having charge of the same, are hereby required to affix one or more light or lights on the bow, or some conspicuous place of such steam boat, schooner, or other vessel during every night that such vessel shall be navigating the said lakes, rivers and channel, or either of them."
The night is taken to extend from one hour after sun-set to one hour before sun-rise, at all seasons of the year.
It is also enacted that every "steam boat or vessel carrying passengers, shall be provided with a good and sufficient gangboard or gangboards, with substantial hand rails; and the master thereof shall, on stopping at any wharf or landing place, cause the same to be firmly secured to the said vessel, and wharf, or landing place, for the safe and convenient transit of passengers; and shall cause to be affixed to the gangways (in the night time,) good and sufficient lights; and the owners or occupiers of every such wharf or landing, shall also (in the night time,) cause to be shown conspicuously, on such wharf or landing place, and at every angle or turn thereof, a good and sufficient light."
All vessels are also bound to take the "starboard or right hand side of every channel in proceeding up or down the said lakes, rivers or channel;" and when "two vessels are trying to windward, and there may be a doubt which vessel should pass to windward, the vessel being on the starboard tack shall keep her wind, and the vessel on the larboard tack shall bear up or go to leeward."
And when any steam boat, schooner or other vessel or raft shall be going in the same direction with another boat, etc. ahead of it, "it shall not be lawful to navigate the first mentioned boat, etc. so as to approach or pass the other boat, etc. within the distance of 20 yards; and it shall not be lawful to navigate the boat, etc. ahead so as to bring it within 20 yards of the boat, etc. following it."
When steam boats, schooners, vessels or rafts, are at anchor in the night time, the master or person in charge "shall cause a good and sufficient light to be shown in some part of her rigging, or some other conspicuous place of said boat, etc."
Any person commanding or having charge of any vessel offending against the provisions of this Act, is liable to a penalty of £5, recoverable on the oath of one credible witness before two Justices of the Peace; and in default of payment, the penalty is imprisonment for a period not exceeding 30 days.
The owners of all steam boats, etc. the persons commanding or in charge of which neglect to comply with the provisions of this Act, are liable for all damages sustained by any person or persons from any accident arising from non-compliance with the provisions of this Act, such damages to be recovered by trial at law before the Court of King's Bench.
It will be seen by the preceding summary that the Act is sufficiently stringent; and yet it is habitually broken.
The steamboat Western, which was owned in Canada, and plied between Chatham and other places in the Western District, and Detroit, was burned to the water's edge at the Detroit wharf on the 27th ult. The origin of the fire is unknown.
We suppose there was never more produce of all kinds in Kingston than at present. Vast as is the new storage, it is all filled with flour, pork, etc. But as the barges are now arriving from Montreal, the first by the canal having reached this place yesterday, the stock of produce will soon be cleared away.
COMMONALTY OF KINGSTON.
An Act to amend the Act regulating the Public Market.
Passed May 6, 1842.
Be it enacted by the Mayor, Aldermen and Commonalty of the town of Kingston, in Common Council assembled,
1. - That the twelfth clause of "An Act to Regulate the Public Market in the town of Kingston," be, and the same is, hereby repealed, and that the following clauses be substituted therefore, in connection with the penalties in the said Act mentioned:
"That the owner or master of every Steam-boat, schooner, scow, skiff, or other craft, raft, crib, or dram, bringing into the harbour in the said town any article or thing in the fourth clause of this Act mentioned, shall pay to the Market Collector, or his deputy, by way of standing, stallage, groundage, shortage or toll, the sum or sums mentioned in Schedule C. Provided always, that no charge shall be imposed on any steam-boat employed in carrying passengers, except where any such article or thing is sold or marketed off the said boat, or upon any vessel laden with a cargo for the sole private use of the owner, and not intended to be sold, or upon a cargo which shall be consigned in bulk to any shipping merchant with a view to being forwarded out of the town, and not sold or used therein; and Provided further, that in case the cargo of such vessel be exposed for sale, partly on said vessel and partly on the Market Square, such apportionment of the proper rates as may seem proper shall be made, in case of dispute, by the Clerk of the Market; and when the whole cargo is removed to the Market Square no additional charge shall be made for standing thereon, but no article or thing shall be marketed or sold from off any Ferry Boat. The Clerk of the Market shall also have power to decide upon all disputes respecting the burthen or content of any vessel, raft, crib, or dram, liable to Market charges."
II. - That Schedule C., forming part of the said Act regulating the Market, be repealed, and the following Schedule be substituted therefore, namely:
For every sloop, schooner, scow, sail boat, or other craft, of a size which will not contain more than 20 cords of fire wood, or 20,000 superficial feet of lumber, for each arrival. £0 2 6
For every sloop, schooner, scow, sail boat, or other craft, exceeding in size the last mentioned, for each arrival £0 3 0
For every punt, skiff, or canoe, for each arrival. 7 1/2
For every cord of fire wood brought in rafts, cribs or drams 1 1/2
For every 1000 superficial feet of lumber so brought 3
III. - That the thirtieth clause of the Act, hereinbefore mentioned shall be amended, by repealing the following words therein, viz.:
"heretofore in the various clauses thereof mentioned, (except the fourteenth clause.")
J. COUNTER, Mayor.