HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0568 and id is 1 raw text is: PEAX 270. TARLETON V. M'GAWLEY 153
Amongst other evidence the plaintiff offered the answer of Hesenclever to a bill
filed against him in the Court of Chancery by other creditors. At the time this
answer was sworn, Hesenclever had become a bankrupt, but had not obtained his
certificate.
Garrow, for the defendants, objected to this evidence. In the first place he
said that this being an answer to a bill at the suit of other persons not parties to
this record, was res inter alios acta, and therefore could not be evidence in the present
cause. Secondly, that at the time Hesenclever put in this answer, he had no interest
to dispute the plaintiff's debt, for he had become a bankrupt, and was now not even
a party to this record, being discharged by the nolle prosequi. It was much like the
case of three being jointly indicted for a felony ; if the bill was thrown out by the
grand jury, as to one, his confession would be no evidence against the others.
Lord Kenyon.-This answer is not admissible evidence for all purposes. It could
not be received to prove the partnership, but when once a partnership is established,
the admission of one may bind all. If Hesenclever had obtained his certificate and
been discharged by it, at the time he put in this answer, I think there would have
been a formidable objection to the evidence, but at that time he was equally liable
with the others. I do not receive it as evidence of a judicial pro-[270]-ceeding, but
as a naked admission. This is not like the case put of a felony, there can be no
partnership in a crime (a).
The jury found for the plaintiff, damages £245, including the principal money,
25 years interest, and £20 per cent. being the damages always allowed on the return
of bills to America.
Note.-No bill had been filed for a discovery by the present plaintiff, but many
other persons had filed such bills, and Erskine having in his address to the jury
complained of the hardship of a plaintiff in equity being obliged to pay the costs of
a discovery, Lord Kenyon observed that he had once heard Lord Mansfield say he
thought, in such a case, the Court of Law ought to allow the costs paid to the
defendant in equity as costs at law ; that he was struck with the propriety of the
observation, and thought it would be a good rule to be adopted.
Saturday, December 21st.
TARLETON AND OTHERS V. M'GAWLEY.
(An action lies against the master of a vessel for purposely firing a cannon at negroes,
and thereby preventing them from trading with the plaintiff. And it is no
answer to such action that the plaintiff had not conformed to the law of the
country in paying the duty due to the king for his licence to trade.)
[Considered, Pratt v. British Medical Association, [1919] 1 K. B. 244. Referred to,
Mogul Steamship Co. v. M'Gregor, Gow & Co., 1889, 23 Q. B. D. 598; Allen v.
Flood, [1898] A. C. 1.]
This was a special action on the case. The declaration stated that the plaintiffs
were possessed [271] and owners of a certain ship called the Tarleton, which at
the time of committing the grievance was lying at Calabar on the coast of Africa,
under the command of - Fairweather. That the ship had been fitted out at
Liverpool with goods proper for trading with the natives of that coast for slaves and
other goods. That also before the committing the grievance Fairweather had sent
a smaller vessel called the Bannister with a cre* on board, under the command
of one Thomas Smith, and loaded with goods proper. for trading with the natives,
to another part of the said coast called Cameroon, to trade with the natives there.
That while the last-mentioned ship was lying off Cameroon, a canoe with some
natives on board came to the same for the purpose of establishing a trade, and went
back to the shore, of which defendant had notice. And that'he well knowing the
premises, but contriving and maliciously intending to hinder and deter the natives
from trading with the said Thomas Smith, for the benefit of the plaintiffs, with
force and arms, fired from a certain ship called the Othello, of which he was
master and commander, a certain cannon loaded with gunpowder and shot at the said
canoe, and killed one of the natives on board the same. Whereby the natives of the
(a) See Petherick v. Turner, cited in Wood v. Braddick, I Taunt. 104 ; Thwaites v.
Richardson, ante, 20.](ViewImageLocal?handle=hein.slavery/ssactsengr0568&div=1&collection=&method=preview&ext=.png&size=3)