Ham vs Macpherson & Crane
We gladly avail ourselves of the opportunity of laying before our mercantile readers the following Law Report. The case reported was most ably conducted on both sides:
For the Plaintiff - Attorneys, Messrs. Smith and Crooks. Council, H.J. Boulton, Q.C., and G.M. Boswell, Q.C.
For the Defendants - Attorneys, Messrs. Draper and Brough, Toronto, and J.A. McDonald, Esq., Kingston. Counsel, the Hon. W.H. Draper, Q.C., the Hon. H. Sherwood, Q.C., and J.H. Cameron, Esq.
The important action of Ham vs. McPherson & Crane, growing out of the disastrous fire at Kingston in April, 1840, to which allusion has frequently been made in several Provincial Journals, has at length been disposed of. It was brought to recover the value of a large quantity of flour and whisky belonging to the plaintiff which had been delivered to the defendants to be forwarded to Montreal, but which was destroyed on the occasion mentioned. It will be recollected that the cause came on a second time for trial before Mr. Justice Macaulay, and a special jury at the last spring assizes for the Newcastle District. His Lordship who tried the cause, left it to the jury to decide upon the evidence whether the defendants received the property in the character of Carriers, or whether they received it as Warehousemen. If in the former character his Lordship directed a verdict for the plaintiff - if in the latter, a verdict for the defendants. The jury were of opinion that the defendants did receive the property as Carriers, and found a verdict for the plaintiff for £806 13s. 4d., being the full amount of the value of the property.
In Trinity term following, a motion was made in the Court of Queen's Bench to set aside this verdict, as being contrary to law and evidence. Exception was also taken to his Lordship's charge to the jury, on the ground that the evidence at the trial clearly proved that it was in the capacity of Warehousemen only that the defendants received the property; and consequently that his Lordship was wrong in leaving it to the jury to decide whether the goods were not received by the defendants as Carriers. A Rule Nisi was granted on these grounds, and the case was argued in Michaelmas term following, before all the Judges except Mr. Justice Jones, who was presiding in the Practice Court. Their Lordships took time to consider the case until the following term, and on Saturday last judgement was pronounced in favor of the plaintiff. His Lordship the Chief Justice delivered an elaborate and able opinion in favor of a new trial, but Mr. Justice Macaulay, Mr. Justice McLean and Mr. Justice Hagerman, whose judgements pronounced on the occasion also displayed great research and ability, decided against it. The Rule Nisi for a new trial was consequently discharged, and Mr. Ham retains his verdict.
The cases of Ewart vs. McPherson, and Crooks vs. McPherson, which were similar in their nature, were disposed of in the same manner at the same time. The verdict in the former was for £2,787 16s. 0d.; in the latter for £1,596. [Cobourg Star]
p.3 The Late Gale - The Prince Edward Gazette says that the Cobourg pier was demolished, and a schooner that was lying there was wrecked during the late gale. As the Cobourg Star has no mention of this, it must be a mistake. The following account of the loss of the Sir Francis Head and the John Simpson on Gibraltar Point, as mentioned in our last, is from the Toronto Observer.
At the time of our writing this, these Schooners were still aground off the bar, in the same position as when they first struck. We have been favored with a few particulars relative to the disaster as far as concerns the Sir Francis Bond Head from the Captain, Capt. Newman, and subjoin them for the information of our readers. On Thursday last, the Sir Francis was riding at anchor, in three fathoms water, all snug; when about 2 or 3 o'clock in the afternoon the schooner Shamrock lying about one hundred yards to windward of her, parted her starboard chain cable, and while endeavoring to clear the Sir Francis, it blowing a gale from the South West, ran foul of her, carrying away her bowsprit, flying jib boom, and best bower anchor, which disabled the vessel entirely. About 10 o'clock P.M., the Sir Francis began to drift, and on Friday night about 11 o'clock P.M. struck on the bar. The wind had increased to a perfect hurricane. It was snowing at the time; very dark, and the vessel a mass of ice fore and aft. The Captain had gone on board the Sarnia on Thursday about 3 P.M. for wood. The vessel at that time was still holding on to her anchor. He endeavored to board her the same evening, when the boat foundered, the crew consisting of seven hands narrowly escaping with their lives. Immediately after the vessel struck she heeled and fell on her side, the sea making a clean breach over her; the cold was intense. In a short time there were four feet of water in the hold; the fire was extinguished and the hands on board, five in number, benumbed and drenched to the skin, were obliged as their only chance of safety, to huddle themselves into the cabin berths.
In this precarious situation, expecting the vessel to go to pieces every moment, and without a dram of grog on board to put life into them, they remained till the following morning; when Capt. Richardson of the steamer Transit, with that promptness and energy for which he is conspicuous, got under weigh and went to their relief. Being obliged, however, to anchor within half a mile of the stranded vessel, the boats, in spite of the severity of the weather, were hoisted over the side; Capt. Richardson, Capt. Boylon, and three men manning the gig, Capt. Richardson of the Queen and four men, the stern boat; together with the life boat with one man in it - Capt. Newman also, with a boat belonging to the Sir Francis, and three of the crew who were absent with him, were on the perilous expedition. According to Capt. Newman's statement the life boat was upset, but eventually reached the John Simpson. He himself, also, with those on board the boat of the Sir Francis, rowed alongside of her, and as the boat was full of water, hoisted it on board and bailed it out. The crew then manned it again, and by straining every nerve succeeded at length, in spite of the heavy surf and breakers, in reaching the wreck of the Sir Francis, and eventually landed the poor fellows on board in safety. The Sir Francis is lying in about 5 1/2 feet of water, the bows of the other schooner in about one foot and a half, the stern part in about 4 feet. The former vessel is 110 tons burthen, and had, when she struck, upwards of 1100 brls. of flour on board; 300 the property of Wm. Gamble, Esq., consigned to Hooker & Henderson; the remainder shipped by Mr. Dyer of Cleveland, and consigned to Macpherson & Crane. Capt. Newman visited her again on Sunday morning, when he found her full of water up to the deck, and seventy barrels missing. He is of opinion that he will be able eventually to get the vessel off, should the weather admit of it - but of course under any circumstances the damage will be very serious. With respect to his personal loss, his watch, wearing apparel, etc., are on board.
A letter in the Niagara Chronicle mentions the ( ) of 6 Schooners between Point Abino and ( ) River, Lake Erie, two of them are total ( ). They were laden with flour, fresh pork, ( ) and merchandise. No lives lost.
We take the following account of losses on the American side of Lake Erie from Buffalo ( ).
Gale - The wind commenced blowing from south-west and finally veered around to the west, last night about 9 o'clock, and has continued a gale down the lake to the present time.
The steamers Franklin, Sandusky and Julia Palmer, which were laid up for the season in the neighborhood of the marine railway, broke from their moorings and drifted ashore on the east side of the creek; and a few canal craft have also been beached in the ship canal.
The steamer Wayne, which had left for the West, and several sail vessels, comprising the whole of those which cleared yesterday, were compelled to return to port again. The brig Owanungah and schooner Scioto are in with full cargoes from Cleveland. All operations along the harbor are for the present suspended.
The brig Ramsey Crooks, which left here on Wednesday evening, and which was within a short distance of Cleveland yesterday, has just returned to this port, having been compelled to do so in consequence of the gale.
From the Buffalo Commercial of Saturday.
p.S. Since the above was in type, we have learned the following particulars:
The schooner Jefferson, Dougall, went ashore at 6 o'clock last night, about three miles above Buffalo light house, and is a total wreck, attended with a melancholy loss of life - one entire family, husband, wife, and five children, together with a young woman, and one of the men belonging to the vessel, having perished! Capt. Dougall, from whom we have the painful recital, says that about two hours after his vessel beached, the companion way was washed off, and the children and young woman drowned in the cabin and forecastle. A portion of the crew had got ashore, in quest of help, and were endeavoring to rescue the family.
The mate wrapped his overcoat around the woman and tried to keep her warm by walking her to and fro on the beach, but she soon became exhausted and incapable of motion, and was placed in the boat which had washed up, where she died in a short time. Her husband was delirious on reaching shore, and attempted to escape into the swamp near by, but perished within a short distance. One of the hands belonging to the vessel, named James Bruce, got into the swamp and was likewise lost. The family were from Hartford, Ct. - names unknown - the chilidren aged from 8 years downward.
The Jefferson was owned by J.W. Ransom, of Chicago, and was bound for that port with a cargo of 500 bbls. salt, 40 tons iron, and some merchandise, which will be mostly lost. The crew succeeded about midnight in getting on board the brig Olive Richmond, beached below them, in a greatly exhausted state.
When our reporter reached the vessel this forenoon the body of the young woman above mentioned was discovered standing in an upright position, in the fore-castle companion-way, frozen stark and stiff, with hands partly raised in an imploring posture, and her eyes fixed with a cold and stony gaze upon the shore.
The brig Olive Richmond, a new vessel, Capt. Dorchester, went ashore about a mile below Jefferson, early yesterday afternoon. She was bound up in ballast, and will be got off without damage.
The schooner Walter Joy, Capt. Lacy, went ashore about the same time, near the Olive Richmond, with a deck load of flour, which will be partly lost, but the vessel will be got off with trifling injury.
The brig Francis Mills, Capt. Langley, went ashore on the Canada side, 3 miles below Point Abino, at 2 o'clock P.M. yesterday. She lies partly filled with water, by which the lower tier of her cargo, consisting of merchandise, will be injured. She was bound for Chicago and St. Joseph's - will probably be got off.
The schr. Edwin Jenny, Capt. Davidson, dragged her anchors and went ashore below Point Abino, a little below the Frances Mills. She was loaded with stone for some port up the lake.
The following additional particulars were communicated by E.R. Jewett, Esq., of the Buffalo Commercial Advertiser, to Messrs. Pomeroy & Co., proprietors of the express line, and by those gentlemen politely sent to us.
Buffalo, November 19th, P.M., 1842.
Messrs. Pomeroy & Co.
Gentlemen - So far as information has been received, our worst apprehensions have been realized of the disastrous effects of the gale. Since the publication of the Commercial Advertiser this afternoon, the following additional vessels are reported as wrecked.
Schooner Indiana, loaded with salt for Chicago, total wreck.
Schooner Mississippi, Capt. Raymond, for Kingston, loaded with floura and pork, total wreck.
Schooner Ohio, Capt. Robertson, light.
Schooner M. Kingman, freight not known, lies high and dry and it is supposed will be got off without much damage.
The above vessels were all in Gravelly Bay.
Schooner Florida, loaded with flour, pork and whiskey, for this port, ashore a little above Point Abino, total wreck.
Schooner Henry Roop, Captain Fisk, 2000 bushels of corn, at Silver Creek.
Of the vessels heard from, eleven in number, all have been wrecked in a distance of some twenty miles from this port, which is the extent of the coast heard from. What the effect has been beyond is unknown; but it is apprehended will prove most fearful. I will write you again, tomorrow p.m.
In great haste, yours, E.R.J.
In addition we would add that the steamers Great Western and Wisconsin, from the upper lakes, and due at Buffalo on Thursday, had not arrived. The canal is closed at Rochester and Westward.
Pomeroy & Co.
From the Buffalo Commercial Advertiser, Nov. 21st
THE LATE GALE.
Our forebodings of the further effects of the late gale have, we regret to say, been more than realized. We must wait for arrivals from up the lake, before we shall know the full extent of the disasters. The pier at Dunkirk is nearly destroyed. The Harrison and Chautauque laid at the wharf there from Thursday till Sunday morning, and much of the time were in imminent danger, and finally as a measure of safety took to the lake and came into port here yesterday noon, the wind then blowing a gale. The schooner Brandywine, Capt. Tubs, that was also lying at Dunkirk, dragged her anchor Saturday night, and that is the last that has been heard of her definitely. One report is that she went ashore near Silver Creek, and that all on board perished, and another is that she went down the river early yesterday morning a wreck. She was heavily loaded with flour.
The steam boat Chicago, bound up, is ashore three miles below Silver Creek. She was discovered about 9 a.m. the 19th, off Silver Creek, in distress. The citizens rallied and followed down the coast with ropes, to render assistance. She beached at 11 o'clock, and the crew and passengers, to the number of about 60, were all saved. Her deck freight had been thrown overboard the night previous, both pipes carried away, and she became unmanageable. The gale struck her between Conneaut and Ashtabula. She may be got off and her cargo saved.
Besides these we hear that the following schooners are ashore on this side, mostly between this and Silver Creek - Henry Roop loaded with 2000 bushels of corn, Jefferson, W. Joy, Tippecanoe, (all on board lost,) Ben. Franklin, Merchant, (Mr. Boghand, who last year sailed the Favorite, lost) M. Nay (all on board lost) & the brig. O. Richmond. The particulars of the loss of the Jefferson, W. Joy and O. Richmond were given in Saturday's paper.
The schooners just in, report seeing some 20 miles up the lake the "fly" of a sunken schooner, supposed to be the Emily. The schooner Merchant lost a couple of hands - names not known - who were washed overboard at Grand River, Ohio, Walter Roseau a hand on the Jena was also washed overboard during the gale.
A boy called Bill, who came on board the schr. Bucknor at Cleveland as cook was also lost overboard. He said he was formerly attached to the schr. Huron.
The following schooners are ashore on the Canada side near Gravelly Bay; Indiana, loaded with salt, a total wreck; Mississippi, Capt. Raymond, for Kingston, loaded with flour and pork, a total wreck; Ohio, Capt. Robertson, loading light; M. Kingman, high and dry, will probably be got off; and the brig F. Mills and the schr. E. Jenny, the particulars of whose loss were given Saturday. A little above Point Albino is the Florida, loaded with flour, pork and whiskey for this port.
The H. Pierson, which came in during the storm on Saturday, was saved with great difficulty. All her sails are gone, together with her companionway and several spars. There is scarcely a vessel in the harbor, but what has suffered more or less.
In addition to this we have rumors of farther disasters, but in the absence of any authentic intelligence, it is hardly worth while to give particulars of what, we trust, will prove unfounded reports, or at least great exaggerations. The ascertained truth is bad and sad enough. A more fearful gale was scarcely ever known in mid-winter on the Atlantic coast.
p.S. The brig Hoosier that came in just before going to press, reports passing the steam boat Constellation in a distressed condition off the Two Sisters. The Constellation left this port last Wednesday or Thursday. How seriously injured the Hoosier can't say, as she did not pass within hailing distance. She also reports the schooner Michigan with rudder unshipped at Put-in-Bay Island.
Winter has come to us at once...Our harbour is still open, but the only boats running are the Gildersleeve to Prescott, and the Clinton to Oswego...