Page images

the right hand and to the left, I have settled all my worldly affairs, I am now happy-I have disposed of my property, and have distributed it among those objects that are the most worthy and dearest to me.' He would distrust the evidence of a man, whose testimony contradicted the act he had done in a former period of his life. If a person executed a will in articulo mortis, there might be more danger of imposition. But this lady made her will near twenty-two months before her death. Would it be asked, 'Will you disinherit the next of kin? That would depend on circumstances. Many had actually done it, and some with vast applause. An Earl of Lincoln, who thought he could not consistently with his character and his honour support the measures of a minister, gave up his situation, and lost his pension. This conduct was so much admired by Lord Torrington that he left him his whole fortune, though he did not know the noble Lord, and all the world were ready to clap their hands at the act. If this will should be doubted, it will invite people to discuss every will in a Court of Justice. The case is in hands where justice will be done. If there is room to pause, you will pause; but if the case is clearer than the sun, you will deliver your sentiments on it by the verdict you will give." The jury immediately found a verdict for the plaintiff; and set the mind of the judge at ease by securing those rights of property which he so highly valued.

In guarding these rights of property against fraud or violence, and enforcing the rigours of the penal code, this Chief criminal judge of England trusted too much to the effects of terror. To use his own words he thought it very dreadful that men of business should be robbed by those they employed, and he inflicted death as the most terrible, and therefore the most preventive, punishment. Not that he was a cruel or sanguinary man; could he have consulted his own feelings, he would have borne a bloodless ermine, but he thought that his duty to the country required the passing of that sentence, the most dread and painful part of the judicial office, but which, at whatever cost to his feelings, the magistrate must perform. The number of capital convictions and executions on his circuit, have been adduced to prove that he exercised

a more merciful discretion than many of his brother judges, who appear to have inverted the celebrated saying of Wilkes, and to have resolved that," the best possible use to which you can put a criminal is to hang him." An interesting anecdote of Lord Kenyon's sensibility was related in the House of Commons by Mr. Morris in the debates of 1811. Of the occurrence that gentleman had been an eye witness. On the home circuit, he said, some years since a young woman was tried for having stolen to the amount of forty shillings in a dwelling house. It was her first offence, and was attended with many circumstances of extenuation. The prosecutor appeared, as he stated, from a sense of duty; the witnesses very reluctantly gave their evidence, and the jury still more reluctantly their verdict of guilty. The judge passed sentence of death; she instantly fell lifeless at the bar. Lord Kenyon, whose sensibility was not impaired by the sad duties of his office, cried out in great agitation from the bench-" I don't mean to hang you: will nobody tell her I don't mean to hang her? I then felt," he justly added, "as I now feel, that this was passing sentence, not on the prisoner, but on the law." This deserved reproach never startled the learned judge, who was a devout believer in the perfection of the penal laws, and without rising superior to the prejudices of the age in which he lived, gained a reputation for mercy above his colleagues, by yielding more frequently than they did to the impulses of compassion. His humanity, active in cases of life and death so far as his conscience would allow, was less alert in behalf of those criminals to whom secondary punishments had been awarded, and never slumbered so soundly as when a fashionable libertine was to be amerced in damages, a seditious libeller to be sent to gaol, or a knavish attorney to be struck off the rolls.

[To be concluded in the next Number.]


WE proceed in our examination into the principles and practice of general average to inquire, 2ndly, upon what the contribution is to be assessed? The ready answer is, upon all which has been benefited by the sacrifice; and such is, in fact, the rule; from which however are exempted, 1. The persons of those on board, the life of a freeman not being reducible to estimate; 2. Wearing apparel and ornaments in actual use, as accessary to the person; 3. The wages and effects of the seamen, from whom such an exaction would be unreasonable; and 4. The ammunition and victualling stores of the vessel, as being intended for consumption on the voyage. Subject to these exceptions, the whole of the property and interests embarked in the adventure-cargo, including the part sacrificed, luggage of passengers, ship and freight-must severally bear their proportion of the common loss;1 and this proportion is assessed upon the value of the contributory subject. Simple, however, as the rule thus stated may appear, the practical adjustment of the scale is not always an easy task; and it will be necessary therefore to consider with some particularity, 3rdly. The principle and mode of assessment.

The principle then is this: that the value of the thing sacrificed shall be made good by an equal assessment upon the value of the whole contributory stock; so that in all questions of adjustment there are two items of value to be ascertained, viz. 1, that to which, and 2, that upon which, the contribution is to be made; and these it will be convenient to examine separately.

1. Where the claim is for goods cast overboard, the question which first presents itself is this; with reference to what time and what place is the value to be taken-is it to be the prime cost of the goods, or their increased worth on board, or their net value at the port of destination? Now it is clear that the loss to be compensated is that which has been actually sustained. Subject only to his proportion of the general charge, the owner of the goods sacrificed ought to be neither better nor worse off than he would have been if the sacrifice had not been made. It follows therefore that, if the vessel actually arrive

1 Deck-loads, though exempted from the benefit, are subject to the charge.

at her port, the valuation should be made according to what the goods would have been worth if they, like the rest, had reached their destination; and accordingly the general practice in this country is, to estimate them at the current price in the market of consignment, minus the freight and charges which the consignee would have been called upon to pay.


It is on the same principle that if after the jettison the vessel by a new disaster be disabled from completing her voyage, and the cargo be consequently sold at an intermediate port, the valuation of the sacrificed goods is made at what they would have produced under such circumstances at that intermediate place; for it is evident that if they had escaped the jettison, this and no more would have been their actual worth.

In like manner a proportionate abatement is to be made from the amount of compensation when subsequent accidents of navigation have rendered necessary a partial sale of the cargo preserved, or have otherwise diminished its aggregate value ; because as the goods, had they remained on board, would have been subject to the common risks, it is but fair to assign an average diminution in their value in respect of casualties which have actually occurred.

But the rule of referring the value to the terminus of the adventure is not always followed; for if the loss take place at so early a period of the voyage that the vessel puts back to her port of departure, it is usual either to replace the goods in kind, or if that be not practicable, to estimate them at the cost price, plus the charges of shipping; a practice which, though not perhaps scrupulously correct, has undoubtedly the advantage of convenience.2

1 By the civil law the estimate was made on the prime cost, and this rule still prevails in many countries abroad. For the usages of foreign nations generally on this subject the student is again referred to the excellent work of Mr. Benecke on the principles of Indemnity and Marine Insurance. The Courts of this country recognize the variations in the law of other states, so far as to support payments in conformity thereto by the master or others. (See Walpole v. Ewer, Park, 629; Newman v. Cazalet, id. 630; Simonds v. White, 2 B. & C. 805.) But they require satisfactory evidence that such is in fact the law of the place. (Power v. Whitmore, 4 M. & S. 141.)

2 In such cases the average is ordinarily adjusted immediately at the port of departure, whereas in general the settlement is made on the completion of the voyage at the port of arrival, Practically therefore it is correct to say that the value is to be estimated with reference to the place of adjustment.

For goods damaged by a jettison, the measure of compensation is the deterioration in marketable value, properly referable to that cause; and although there may be cases, as of perishable commodities, where it may not be easy to ascertain the quantum with accuracy, yet it is evident that this is a difficulty inherent in the subject, and not fairly attributable to any uncertainty in the rule.

Damage to the vessel is to be estimated by actual survey, in which great nicety is sometimes requisite for distinguishing how much of the apparent damage is fairly a subject of compensation. Articles which have been replaced, as spars, cables, anchors, or the like, are estimated at their actual cost, without reference to their intrinsic worth; but in all cases of refitting, a customary deduction of one-third is made in respect of the advantage to the owner by the substitution of new materials for old.1

2. The value of the contributory subjects is in like manner ordinarily estimated with reference to the termination of the adventure. Thus, 1st, as to the goods; these, when they reach their destination, are valued for average at their net worth to the consignee, that is to say, at the current price of such goods, deducting the freight, duty, and landing charges. But when the value has been diminished by internal causes, as of corruption or decay, a question arises, whether the estimate should be taken according to their actual worth as damaged, or at the price which they would have fetched if sound; for the determining of which a distinction must be made when the claim is for articles sacrificed, and when it is for disbursements of money. It has been already seen that the right to compensation for the loss of specific articles is contingent upon the ultimate safety of the property benefited by the sacrifice, whereas the right to contribution for disbursements is absolute, creating a debt from the moment when they are made; and as the proper measure of contributory value is the condition of the goods at the time when the obligation attaches, it follows that in the former case they will contribute according to their deteriorated value at the termination of the adventure, whilst in

1 This deduction is not made when the vessel is new; and by the custom of Lloyd's, a vessel is new until she has performed one complete voyage. See Fens wick v. Robinson, Dan. & L. Merc. Cases, p. 8.

« ՆախորդըՇարունակել »