p.2 [From the News]
HAM VS MACPHERSON & CRANE.
An important case was recently tried at the Newcastle District Assizes, before Mr. Justice Macaulay, which we find but partially recorded in the Cobourg Star. The facts, as we have been made acquainted with them, are simply these:- In the spring of 1840, the defendants received a letter from the plaintiff, requesting them to take charge of some flour for him, as he had no room for storage, and as he expressed it, his mill was breaking down. The defendants had, however, previously addressed circulars to various parties, requesting that no produce should be shipped down, as they could not find room for it here, the canal navigation not having then opened. However, on the urgent request of the plaintiff, the defendants consented to receive the plaintiff's flour, and to store it for him until it could be despatched below, and accordingly directed the master of the schooner Commerce, who was then proceeding upwards, to call at Cobourg and take the flour on board, which was done, and 400 barrels were brought to Kingston and placed in the defendants' stores. It was proved in evidence that no boats came up the canal until a fortnight or three weeks after the receipt of the flour, and that the season of navigation had not commenced. During that period, however, a fire unfortunately broke out in Macpherson & Crane's stores, under circumstances with which most of our readers are acquainted, as few indeed forget the disastrous conflagration of the spring of 1840. The defendants lost heavily in the destruction of their warehouses, which, with their contents were entirely destroyed. One of these warehouses contained the property of the plaintiff, who brought this action to recover damages, which were laid at £2,000. There were two counts; the first charging the defendants with a liability as carriers between Kingston and Montreal; and the record with a liability between Cobourg and Montreal.
The case is one of the most important to the mercantile community that could be brought to the test of the law, and under the circumstances above stated and shown in evidence, the verdict of the jury is truly surprising; a verdict with which no just judgement can coincide.
His Honor charged the jury that if 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 out 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 for them, when the effect of frost would render it impossible that they could be forwarded. And yet with the decisive opinion of the Judge upon the point in question, a verdict was given for the plaintiff.
It is at all times a delicate matter to question the integrity of a jury sworn to decide impartially and fearlessly, but circumstances forbid any other conclusion than that the question was determined before one argument was brought forward pro or con; for we are assured on authority which we cannot for a moment question, that during the greater part of the trial, nine of the twelve composing the jury were asleep, and that, too, during a speech from Mr. Draper, the Attorney for the defendants, which the editor of the Star describes as one of the best specimens of forensic eloquence he had ever heard. If it were not for this fact we should find an easy solution of the problem in the words of Mr. Roswell, Counsel for the plaintiff, who informed a jury composed of farmers that the defendants had made immense sums of money by exactions upon their grain as it passed through their hands, and that while an adverse verdict would be ruinous to his client, if the defendants had to pay the whole amount claimed, it would not be more felt by them than his client would feel the abstraction of a farthing from his pocket. The simple fact is, that Messrs. Ham and Perry, of Cobourg, are the principal purchasers for the farmers in that section of the country, and it would be claiming too much for human nature to suppose that a jury could be brought together unbiased when the poverty of the plaintiff and the rapacity of the defendants are respectively charged. It is not a matter then, merely of law - opinions formed and strengthened by studied misrepresentation are not easily changed even by the display of incontrovertible facts - certainly not when addressed to those who are apparently locked in the arms of Somnus, and who have for a time at least forgotten the vicissitudes - the glorious uncertainties of the law. We trust, therefore, that the case will be carried before a more competent tribunal - the interests of the mercantile community at large imperatively demand it as it is not the case of the parties here mentioned alone, but one in which an important precedent must be formed, and in which the utmost care and deliberation should be taken.
PORT OF KINGSTON - ARRIVED.
May 12th - Sch. John Simpson, 43 bls ashes, 60 pork, 178 flour, Ross, Matthie & Co.; Barcelona, 351 beef, 651 flour, 19 lard, do.; Sir William, 302 flour, 12 pork, 3 ashes, do.; Peacock, 1979 bus wheat, 75 bls flour, Sanderson & Murray; str. Princess Royal, 443 do., do.; Indiana, 773 do., do.; Kent, 84 pork, 202 flour, 53 butter, Macpherson & Crane; Empress, 2170 bus wheat, do.; Dexter, 3335 do., do.; Havana, 1049 bls pork, do.; Alicia Ann, 68 pork, McGibbon & Ferguson; Geo. Watson, ? bus wheat, 50 bls pork, do.; Dolphin, 21 flour, do.; Hornet, 128 pork, do.; str. Princess Royal, 118 flour, Hooker, Henderson & Co.
May 13th - str. City of Toronto, 48 pork, 260 flour, Sanderson & Murray, 200 do., H. & S. Jones; Henrietta, 1257 do., Macpherson & Crane; Pennsylvania, 777 pork, do.; Western, 562 do., do., 344 do., Hooker, Henderson & Co.; str. Niagara, 100 flour, do.; str. St. George, 440 do., do.; Minerva, 2340 bus wheat, Macpherson & Crane.
May 14th - Winnebago, 190 doz. corn brooms, H. & S. Jones; Jane & Eliza, 9384 pcs staves, Macpherson & Crane; Clyde, 12344 do., do.; J. Porter, 240 bls pork, 4 lard, Hooker, Henderson & Co.; H. Counter, 428 pork, Macpherson & Crane, 864 do., H. & S. Jones, 240 do. McGibbon & Ferguson; J.C. Hunt, 519 pork, do.; Otter, 1740 bus wheat, do.; Herald, 654 flour, do.; Margaret, 231 bus wheat, do.; str. Princess Royal, 16 whiskey, do., 400 flour, H. & S. Jones, 490 flour, Sanderson & Murray; str. Kingston, 45 ashes, do., 310 flour, R. Scobell.
May 16th - str. Union, 35 pork, 50 flour, H. & S. Jones, 107 do., Macpherson & Crane; Alicia Ann, 1032 bus wheat, do.; Native 2027 do., do.; J. Welsh, 873 flour, 19 ashes, 30 pork, 40 whiskey, H. & S. Jones, 300 do., McGibbon & Ferguson; Jane, 848 flour, Sanderson & Murray. [News ?]
p.3 TO CONTRACTORS - Sealed Proposals will be received from the 1st until noon of Wednesday the 15th of June next, for the Excavation of a Branch to connect the Feeder of the Welland Canal with the Grand River, (about 2 miles in length;) the construction of an Entrance Lock to the same, 185 by 45 feet; a Guard Lock at Dunnville, 45 feet wide; and Six of the Locks between St. Catharines and Thorold, 122 by 26 feet.
The Plans and Specifications of the above Work can be seen at the Office of the Board of Works, Kingston, or at this Office. Sureties resident in the Province will be required.
12th May, 1842 Welland Canal Office, St. Catharines.
At a Meeting of the Stockholders of the Steamer Kingston, held at this Office on 16th instant, a Dividend of Three Pounds 15 shillings per share was declared, payable at this Office, on and after the 1st day of June next.
D. Prentiss, Chairman.
Royal Mail Packet Office, Kingston, May 19th, 1842.
To Experienced Contractors - Tenders will be received until the 25th inst., for the repairs of Gull Island Light House, on Lake Ontario, according to Plans and Specifications to be seen at this Office, or with N.H. Baird, Esq., Cobourg, prior to this date.
Tenders to be endorsed, "Tender, Gull Island Light House," and addressed to the Secretary Board of Works, Kingston.
Kingston, 14th May, 1842 Board of Works Office.