LAW INTELLIGENCE. I
SITTING FOR THE TRIAL OF CAUSES,
(Boforo Mr. Justice Dickinson and . commun jury of
RAPHAEL v. yzoKssnv.
The trial of thia oaso was commenced on Tuesday.
' This waa an action for libel, tho subject of tho notion being a lotter addressed to tha Morning Herald, and signed " Importer 1 " This communication, set forth in tho plaintiffs declaration, was as follows :
GOODS DAMAGED DY SEA WATER.
To the Editor of thu Sydney Morning Herald.
Sin-Can you Inform mo whetbor or not tUoro la «ny person in Sydney to ropreeont and protect tho interests i of English
I am induced lo put thia quory from tho foot of frcqnontly witnessing tho salo of oonslderablo quantities of goods sold as '"damaged bj/ tea water," whioh are no moro utTeotad by that -olemout (little or much) than the mon who buy or sell thom.
At a sale held thin day, «large quantity af boola and shoos, hoing tho unsaleable portion of a rooout shipment, .vroro thus
Among the unoondomned portion of the shipment was a trunk of slippers offered, willoh, not realizing a prloa satisfactory to tho owner, who was present, lio desired tho aaotlonaor to havo them withdrawn, that ho might got thom condemned,' nnd, of conrso. sold ns " damaged by ten tonier." I would hero romark that it ls tho natara of boots and shoos, If not dried by tho appli- cation of heat boforo packed, to bacorao mildewed without refer- ence ta any oxtornal InQuenco.
The defoct Brining from hasty paoking ls too often cbargod to tho account of tho underwriters, nnd tho goods along with tho unseasonable portion of tho shipments are surveyed, condamaod, and sold as damaged hu tea water.
Nothing seems easier than to got porsons to certify that Bound
goods aro damaged.
I oan bring many oompolont wltnessos to provo that tho goods above roforred to were thus said, and that this 1B morely a faint representation nf many similar COBOS ; tho goods hoing no moro damaged, or in any way affected by sea wator, than ou tho day tboyleft the manufacturers' hands.
I would just remark that nn honest trader cannot compoto with a dishonest trickster. Tho one succeods booauso ho will not make a lou on his importations, tho othor ls driven out of tho market because ho oaauot havo rocoureo to su oh dlshonourablo
I am, ho.,
. Sydney, Novomber 21th, 1650.
. Tho defendant pleaded not guilty, and also justifica- tion, tho publication being allogod to be truo and for tho publio Interest, inasmuob as lt was calculated to pre vont frauda of a dosoription ? of frequent oeourronoe. The case excited considerable interest ia tho mercantile community.
Tho Attornoy-General.and Mr. Holroyd appeared for tho plaintiff; the Solioitor-Oeneral and Mr. Martin for
' Tho question mainly for trial was whether the goods in question, a quantity of boots and shoe3 sold as damaged by salt water, wero really damaged or only not very fit for tho market at the time of Balo, and sold as damaged sci as to maka the underwriters responsible for tho loss upon an unmarketable commodity. The goods wore sold by auction by M ssrs. Purkis und Lambert, being part of a largo shipment. Next day tho publication appeared which was tho subject of this aution. Thoro wera 1)0 cases. : Of these 05 wore sold as damaged by' salt water. ' The whole were sold on that' occasion. A
portion was fit for tho market, a largo portion in littlo
or no demand. There wero 17 cases out of tho 3D sold as damaged, now produced in Court, and of these several wero now opened for tho first timo to bo subjected to tho inspection of witnesses. A great number of witnossos, persons in tho boot and shoo trade, were examined. Soma of the goods were stated to bo damaged by salt water-a great quantity was mouldy ; but a great por: tion sold as damaged were pronounced to bo in excellent condition, anil of thi3 portion a large quantity was said to bo of tho. classes ot goods not marketable at the time of the sale. As to tho mouldy portion ? of the goods it was stated to bo not in a worse condition than many similar importations. Moreovor, on this portion no loss need havo been entailed on account of mouldiness, as this could be effectually removed by cleansing. Salt water stained such goods beyond reparation ; its effect was to damage tho leathor' thoroughly. A survey was held ' upon the goods at tho defendant's instance. The
following wore the surveyors ;-Messrs. Ray, of tho firm of Hay and Glaister; Christopher Newton, of the firm of Newton, Brothers, and Co.; Benjamin Cooks,- of the firm of Cocks and Hunt; H. Prince, of tho firm of Prince, Bray, and Ogg; Frederick Parsons, of the firm of Keep and Parsons; William Soole, W. Fawley, J.
Westbrook, J. E. Bogg. Several . of these gentlemen. were oxamined. A number of tradesmen, who were importers, were also examined. Tho effect of their tes- timony was that competent persons oxaminin'g tho goods could not fall to see that they were not damagod by salt water, and that it was not right to condemn buch goods ns unsound without opening the cases and particularly examining tho contents.. The wrappers of tarred onn - vas upon tho cases they considored sufficient to protect
the inside of the cases from external damp. They con- sidered sorno of the goods sold as damaged were in better condition than some that wero sold as sound. During tho salo there was much comment upon the . transaction as bciog dishonest by porsons present iu tho salo room. It appeared, however, that thc plaintiff endeavoured to roiso the prioos at the salo, notwithstanding that several remonstrances were made against raising tho price when the goods were sold as damaged, and nt the expenso of the underwriters. Persons kept pelting some of the boots about tlio place ; .some of them at tho plaintiff; this proceeding being alleged to indicate bud feeling ?against him in tho trade from which tho cbargo of fraud might havo originated. On tho otlior side snoh practice of pelting damaged goods was said to bo froquent in salo rooms. Tho plaintiff himsolf considered thoro was a feeling against him'in tho trado merely on account ol' his being of tho Jewish persuasion. Tho defendant wrote a letter to tho same effect as tho subject of tho notion to tho master of tho ship by which tho goods woro imported calling upon him to protect tho under- writers, on the doy tho defendant's lotter was published persons wero asked to sign a certifícalo that tho goods were damaged. This they refused to do.
For tho plaintiff it was not urged that the defendant was netuatud by malice: the ovidenco showed that tho defendant was not without some reason for writing such a lotter, and might have been actuated hy proper mo- tives. But tho question was not morely whether tho defendant was actuated by malice, but whether tho plaintiff was guilty of fraud -ho whose interest, as a mero agont, was to sell the goodB for tho highest prico ho could obtain, and who acted upon tho authority of surveyors who condemned the goods in such terms as those under which they wero subsequently offered for sale. A considerable amount of tho plaintiffs ovidenao taken de bene ene was read. Mr. Norman, tho ownor of tho goods, was ono whoso evidonco wus so taken. This witness stated that he would make no moro consignments to plaintiff till the issue of this caso was determined, as bis doing so might afloat his insurances in England. Ono consignment he had already withdrawn from tho plaintiff. He lind mado consignments to plaintiff to tho extent of X'0000. Tho muster of tho vessol by which tho goods in question were imported, and ono or two othcrs.Btntcd that tho ship cxpt ri oncod rough weather and took in sra water nt her seams; some of her cargo was consequently damaged. Those casos of boots anti shoos were near tho deck ; their ex- ternal wrappers were wotted, and to homo extent rottod by snit water. Tho marino surveyor and other witnossos confirmed this evidence. Tho plaintiff had tho goods, in tho noxt pince, surveyed. Tho snrvoyors wero Cap- tain ailbert, a marina surveyor, and Mr. Folk, a' clothier, who stated ho had oxparienco in the goods of tho description in quoBtion. They condemned the goods. Tiley caused ten or fifteen cases to bo oponed, and condemned them in oonscquenae of the mouldy stnto of tho boots'insidc. They condemned all tho other cuses without opening thom that presented similar ttppearnuco of dampness. They considered this Ernctioo rcgulnr, and wero corroborated in this opinion y other witnesses. Tho reason for tin's practice was that tho cases, if opened, would not ba sn marketable wholesale. " Captain ..Gilbert had much experience as n surveyor, Mr. Folk not miioh, but was oonbidervd a com- petent and respectable person for such employment. Other witnesses called for tho plaintiff did not ngroo that it was regular or proper to condemn unopened casos. Goods damaged by unit watur should bo sold at once, it was btitcd, and might be rondered entiroly un snlenblo by being kept over for a good market. Tho practico/idoptud by tito plaintiff was quito regular. It was tho propor course between the consignée and tho
underwriters to call a survey upon goods that appeared
to ho damagod, nnd to sell by nuolinn snob as tho sur- veyors condemned. He could not do olhorwisù except at tho risk of tho oonsignco. Tho goods when con- demned boeamo tho property of tho utiderwriti'ts, who woro bound to pay any loss, and entitled ta rceoivo any giiúi. Witness to this effect stated that tho plaintiff was
otind to poll tho goads oven on discovering, uftor condemnation of tlio surveyors, that thoy wore really sound-though it was tho duty of tho consignee to pró- vido coinnotcnt surveyors. Thoro was n question BB to tho certificate of tlioso snrvoyors. It was drawn up by tho plaintiff; but tho plaintiff stntod ho wroto it from their notos, and it was submitted to thom bofuro thoir signatures rr oro nttnohod. Tho mnstnr of tba ship by willoh tho goodn ivoro importod nlgnod tho certificate this was irregular, as ho ought meroly to have oortiflod
ns to tho condition in which the goodB on m o by his ship, 1 His signature to tho aertlfioato. howovar, WOB no mara i than nn irregularity. Tba plaintiff stated that ho en-
deavoured lo got tho aurvnyora to examino all tho casos 1 but they tefuved, wtproming themselves tatisfled with i what they hod done, Ho know nothing whatever as to <
the condition of th« goods tilt they wara exposed for sale, and then he did bis best to show their good cori' ditton and to obtain high prices for thora, for whioh ho was abasad and peltod by tho buyers in tho auction room. The goods presented such a damaged appear »nco that tho plaintiff and other witnesses considered at the timo that they wcro damaged* hy snit wulor; thu plaintiff believod ho tattled saltwater from some of them. Tho goods sold BS damaged realised a profit of over A'30 ; tho sound goods a muoh larger profit. Ho would have sold tho goods ns Hound if ho had known thom to bo so, notwithstanding tho report of tho surveyors.
His Honor having stated tho issuos to the jury, called their attention to tho oustom proved to exist, of selling at tho risk of tho undorwritters goods condemned by surveyors-a system' which had an important bearing upon tho question of tho plaintiff's honosty, in the transaction referred to. As to this praatice itsolf, it was quito a mistake to supposo that the consignee was bound to net upon ' an orroheous roport of surveyors-to do so knowingly-to sell sound goods as unsound, knowing them to bo sound, was to render himself liablo in an notion by tho underwriters. But still it wns for tho jury to oonsidor how fnr tko report of the surveyors was likely to havo influenced the plaintiff into tho belief that ho was aoting properly and for tho best.
The jury rctirod nt ten minutes to four o'clock, and at half-paat six roturnedca verdiot for tho defendant.
FRIDAY, TEDRUAUY 27nr., 1857.-HULES NISI. Houghton v. Edwards ; Badham t>. Holt ; Arkins v. Ferns} Shea v. Joice j Birnstingl v. IColin ¡ Gordon v, Scott, motion for lcavo to appeal ; Terry, v. Osborne, to bo hoard as to costs,