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![handle is hein.slavery/ssactsengr0554 and id is 1 raw text is: HOCKLESS V. MITCHELL
[86] HOCKLESS ET ALT. V. MITCHELL.
(Where there are several owners of a ship, who bring an action for damage done to
her, a release from one of the owners only will be sufficient to render the master
a competent witness; neglect being imputed to him, so that he might be liable
for negligence over to the owners.)
This was an action of trespass vi et armis, brought by the plaintiffs, who were the
joint owners of a sloop, called the Duke of Cumberland, of Whitstable, ini Kent, to
recover damages against the defendant, who was a lieutenant in his Majesty's navy,
for the cutting away and destroying the sails and rigging of the plaintiff's sloop.
The defendant pleaded a justification, that he was, at the time of the trespass
committed, commander of his Majesty's gun-brig the Boxer, then lying at anchor
in the river Thames; that the sloop stated in the declaration, was sailing down the
river, under the direction and guidance of the plaintiff's servants, who so negligently
and carelessly steered and directed her, that she ran foul of the gun-brig, and became
entangled with her ; wherefore, in order to extricate her, and for her preservation,
he necessarily cut the sails and rigging ; which were the trespasses in the declaration
mentioned.
The plaintiff now assigned, That the injury was excessive, and not necessary for
the purposes justified in the plea.
Plea of not guilty to the new assignment.
The first witness called by the plaintiff was the sailing-master, who had the
command of the sloop at the time of the injury.
He was objected to by the defendant's counsel, as inadmissible without a release.
[87] A release was produced ; but it was executed by one of the plaintiffs only.
It was for this objected to, as it ought to have been executed by all the plaintiffs
on the record, who were the joint owners of the said sloop, and who had sustained
the injury.
Lord Kenyon ruled, That it was sufficient if the release was executed by one
for that, if an action was brought against the witness for neglect of his duty, in case
the plaintiffs did not recover in the present action, it would be a joint action in
which case, a release by one would be pleadable in bar to the joint action.
The witness was then examined.
While the plaintiff was proceeding with his evidence on the case, Lord Kenyon
said, That, as the issue stood on the new assignment, it was not sufficient for the
plaintiffs merely to shew the damage done, it was incumbent on them also to shew,
that it was done wantonly and unnecessarily: That, whatever mischief might have
been sustained, if it was done under the fair impression and belief that it was necessary
for the safety of the defendant's ship, he would not scan some little excess too closely,
but would expect clear excess and unnecessary injury to be proved.
Many witnesses were examined on both sides.
The jury found a verdict for the plaintiff.
Erskine, Park, and Espinasse for the plaintiff.
The Attorney-General and Jervis for the defendant.
[88] Dec. 21st.
ROBERTS ET ALT. V. EDDINGTON.
(The Sound List, containing the account of the arrival of ships there,
is not evidence of that fact.)
This was an action on a charter-party, by which the defendant chartered his ship
to the plaintiffs, engaged to go on a voyage from London to St. Petersburg, and bring
home a cargo of deals on their account : dangers of the sea and restraints of princes
only excepted, in the common form.
The ship had not proceeded to St. Petersburg.
The defence relied upon by the defendant's counsel, was,- that the ship, in the
course of her voyage, had met with storms and bad weather, which had forced her
into Dantzic after she had passed the Sound ; and that, during her stay there, the
Russian embargo had been laid on ; so that, if the vessel had proceeded to Petersburg,
the captain and crew must have gone into slavery.
The plaintiffs imputed the failure of the voyage to negligence and misconduct
on the part of the defendant, and proposed to give in evidence what is termed the
Sound List and the Petersburg List, which are documents transmitted by the British
4 ESP. 88.](ViewImageLocal?handle=hein.slavery/ssactsengr0554&div=1&collection=&method=preview&ext=.png&size=3)