1830. PHILLIPS v. WIMBURN, Gent. &c. Feb. 27th. ASSAULT and false imprisonment. Pleas-The gene- It is to be preral issue, and several special pleas of justification. A witness for the plaintiff proved a dispute, and charge given to a constable, who took the plaintiff to a police office; and he stated that the defendant was sworn, and stated his case at the office against the plaintiff. The witness was commencing his account of what the defendant said, when Russell, Serjt., objected that the parol evidence was not receivable, as the presumption of law was, that what took place at a police office was taken down in writing. TINDAL, C. J., was of that opinion. The witness being asked, said, that he did not see any thing taken down in writing. Wilde, Serjt., submitted, that, as a general rule, it would be inconvenient to hold that there was a general presumption of law, that statements were taken down in writing, when the witness said, that he did not see that any thing was so taken down. TINDAL, C. J.-I think, that, when it appears that a witness was sworn, we must presume that what he said was taken down in writing. Sometimes a party goes into a police office and states a complaint, which goes off without his being sworn, and then it may not be taken down in writing. You may call the magistrate's clerk, and he will tell you whether there was any thing taken down in writing or not. Verdict for the plaintiff. sumed, that what is stated on oath before a magistrate, is taken down in writing; and, therefore, parol evidence of such a statement is not receivable, unless it be first shewn that it was not so taken down. 1830. PHILLIPS V. WIMBURN. tiff. Wilde, and Andrews, Serjts., and Ryland, for the plain Russell, Serjt., and Miller, for the defendant. [Attornies-Thwaites, and In Person.] Vide Rex v. Hollingshead, ante, p. 242. March 1st. Where a de fendant pleads that he was "duly discharged" under the ANDREWS and Another v. PLEDGER. ASSUMPSIT on a bill of exchange against the defendant, as acceptor. There was no plea of the general issue, but only a plea of a discharge under the Insolvent Debtors' Insolvent Debt Act. Replication, denying that any such discharge took place (a). ors' Act, and the plaintiff in his replication denies the discharge modo et forma, it is sufficient for the de fendant to prove the order of ad judication for his discharge, and it is not necessary to prove the fact of his having although that fact is essential to give the On the part of the defendant, a certified copy of the order of adjudication for the discharge of the defendant was put in, and that part of his schedule was read which contained the entry of the bill on which the action was brought. Andrews, Serjt., for the plaintiff, submitted that the filed his petition, filing of the petition must be proved. Without that, the Court have not jurisdiction. The defendant is bound to shew that all that was necessary to entitle him to his discharge has been done. This case differs from that of Delafield v. Freeman (b), as that was a question of the Court jurisdiction. (a) The plea and replication were in the same form as those in the case of Northam v. Latouche, ante, p. 140, the plea merely alleging that the defendant, "by a certain order of adjudication," &c., was " duly discharged according to a certain Act of Parliament," &c., and the replication, stating that the defend ant " was not discharged in manner and form" as in the plea alleged. (6) 6 Bing. 294, and ante, p. 67. One of the points decided in that case was, that the production of the insolvent's petition was not necessary to support the title of the assignee. title of the assignee to sue, and this is the case of a special plea by the insolvent himself. On the part of the defendant, the 61st (a) section of the Insolvent Debtors' Act, 7 Geo. 4, c. 57, was referred to. Andrews, Serjt.-The 76th section applies to this case, and if that section, after stating that certified copies of the petition, order, &c., shall be admitted in evidence, went on to say, "and that such evidence alone shall be sufficient," that might make the proof which is offered in this case do; but it would be going a great way to say, that, without those words, the things necessary to give the Court jurisdiction must be taken to be dispensed with. The 61st section does not control those sections which require the filing and signing of the insolvent's petition. TINDAL, C. J.-It strikes me in this way. You must be taken to have admitted all that you do not put in issue by your replication. The ground on which I decide is, that, upon the issue which is raised by your replication, the filing of the petition must just as much be taken to be admitted as any other fact not specifically denied. Verdict for the defendant. Andrews, Serjt., and Channell, for the plaintiffs. [Attornies-Tilson & Son, and Howard & J.] (a) Vide Northam v. Latouche, ante, p. 140, where that section is set out. It provides, in effect, that a defendant may plead generally, that he was duly discharged, and that the plaintiff may reply generally, and deny the matters 1830. ANDREWS ຫ. PLEDGER. 1830. April 20th. The captain of an insured ship, which has been injured by perils of the seas, is not justified in selling the ship instead of repairing it, unless he either has not the means of getting the repairs done at the place where the vessel is obliged to put in; or cannot except at such an expense as were not insur ed; or has not money in his possession, sufficient to pay for the repairs, nor is in a situ ation to raise it SOMES v. SUGrue. ACTION on a policy of insurance for 3,000l., on the ship Sir Godfrey Webster, valued, with her stores, at 6,000l. A sum of money had been paid into Court. The plaintiff was the owner of the vessel in question, and the defendant was one of the members of the Saint Patrick's Assurance Company. On the part of the plaintiff, the mate was first called, from whose evidence in chief the following facts appeared. -The Sir Godfrey Webster sailed from the cove of Cork, get them done, in June, 1825, on a voyage to New South Wales, with convicts. Her course, after delivering the convicts, was for Sincapore, thence to Penang, and thence to London. She had bad weather after she left the Cape. She arrived at Sidney in the month of January, 1826. Having suffered from the weather, she was surveyed at Sidney by three respectable persons, and the quarter galleries were taken away, and the quarters new planked, and there was some fresh caulking. When she left Sidney for Sinby loan or other capore (where she arrived in May, 1826, after a fine passage), she was quite sea-worthy. At Sincapore she was would prevent a surveyed again by the agent for the charterers, and she was there caulked in the gun-deck. She took in part of her cargo at Sincapore, consisting of sugar, coffee, antimony, &c., and the remainder she took in at Penang. Her cargo was well stowed, and she was not very deep in the water. After she left Penang, about the end of June, 1826, she encountered heavy squalls, of five or six hours' duration, with a confused sea, and she laboured and strained a great deal. This weather lasted nearly the whole of July, and, towards the middle of August, heavy gales came on. She then made water, commencing with about four or five wise, except at such an extra vagant rate as prudent man, in the exercise of a sound and vigorous judgment, from undertaking the re pairs under such circumstances. inches per hour, and increasing as high as fourteen inches. On the 14th or 15th of August, a consultation was had between the captain, the mate, the second officer, and the carpenter, and it was resolved that it would be dangerous to pass the Isle of France, and therefore that it would be best to bear up there; the ship was then very weak and worked much, the top apparently moved from side to side. At Port Lewis, a person named Alexander Asher, was employed as agent for the ship, and on the 21st of August, a survey was made by Ambrose, a surveyor, Royer, the harbour-master there, and Hutchinson, the captain of a merchant ship. The vessel was then in a very awkward state outside; several butts had started at the main chains, and some planks had started off, and the larboard side of the main chains had the appearance of being logged; several of the seams were open, and the oakum was nearly all washed out. In consequence of this, about eight or nine days after, part of the cargo was taken out, and a fresh survey was made of the inside. Between the surveys the captain died, and the command devolved upon the mate. Upon this second survey, it was discovered that several of the iron standards of the gun and orlop decks had started, and some of the beams of the gun-deck were broken, and the deck itself had partially sunk about the main hatchway, and also that several of the ship's knees were broken. A third survey was thought necessary, and Captain Hutchinson having left the harbour, a Mr. Brooks, the master of a brig, surveyed in his stead. Upon this third survey, which took place on the 7th of September, the remainder of the cargo was taken out, and it was found that about a third of the whole number of knees had been broken. There was an establishment on the island for the repair of vessels, which was called Piston's Establishment, the manager of which came on board after this survey; he estimated the expense of the necessary repairs at 16,000 dollars, (about 4,000%. sterling): the 1830. SOMES v. SUGRUE. |