Page:The English Reports v1 1900.pdf/1028

to £7000 and upwards, and sent her to trade in India, under the command of one Peter Sherston, Henry Garway being the super-cargo.

In the month of April 1702, during the course of this trading voyage, the said ship put in at Batavia, a Dutch settlement in India, in order to wait a shift of wind for the port of Achine; but Allen Catchpole, one of the Company's Governors, being then at Batavia and in great want of a ship for their use, he prevailed upon Captain Sherston to betray the ship and cargo into his hands, who sailed her to Pulo Condore, where she was for a long time very serviceable to the Company; and according to the common rate of hiring ships in India, earned them several thousand pounds.

[383] So soon as the respondent was informed of this transaction, he, in February 1703, filed his bill in Chancery against the Company, for a satisfaction of the loss be had sustained by the unfair practices of their said Governor. The Company put in their answer to this bill, insisting, that the ship put in at Batavia, because she was not in a condition to perform her intended voyage to Achine; and that Catchpole there bought her for 1200 Spanish dollars, which was her full value; they also insisted, that they were not answerable for what Catchpole did, in buying or taking possession of the ship, the same being done without any order or authority from them; nor did they in any wise approve thereof, or make any entry of the same in their books, or take any notice of her as their own ship, nor was she of any use to them, being laid ashore at Pulo Condore, and a hole cut in her bottom and destroyed.

The further proceedings in this cause were necessarily delayed by the absence of several of the respondent's material witnesses; but he having at length got them examined, the cause was heard before the Lord Chancellor. Cowper, on the 11th of November 1715, who was pleased to declare, that is plainly appeared, that the ship and stores which were sold, came to the use and advantage of the defendants; and that at the time of the sale of the said ship, there was no necessity for the sale thereof, but that the same was sold, because the defendants wanted the said ship to perfect a project which they then had on foot at Pulo Condore, and not for any want that the ship and crew were in; that such sale was a breach of trust in the Captain, who had no power to sell the ship; but that the defendants ought not to be affected with such breach of trust; nor ought they to answer for the possibility of profit which might have happened to the plaintiff, if the ship had not been sold, and had performed her voyage; but that the defendants ought to answer for the ship, stores, and cargo, if any, which came to the hands of them, or their agents, at the value the same were of at the time of such sale; and therefore it was referred to a Master, to take an account of the value of the said ship, stores, and cargo, which came to the hands of the said defendants, or their agents; and what, if any thing, should appear due thereon, after deducting what the defendants agents had paid for the same, was to be paid by the defendants to the plaintiff but the consideration of interest and costs was reserved until after the report.

In taking this account before the Master, several witnesses were examined on both sides; and on the 17th of December 1716, he made his report, and thereby certified that the said ship, with her stores and cargo, which came to the hands of the defendants, or their agents, at the time the same were sold to the said defendants, or their agents, were of the value of £4000 sterling; whereout being deducted 1200 Spanish dollars, being £300 sterling, paid by the defendants, or their agents, on account of the said ship, stores and cargo, there then remained £3700 due from the defendants to the plaintiff and which was to be paid by them to him, according to the directions of the said decree.

[384] To this report the defendants took an exception; upon the arguing of which on the 9th of March 1716, the Lord Chancellor ordered, that the parties should proceed to a trial at law, in the Court of King's Bench, some time in the then next term, or the sittings after, as the said court should think fit, to try what was the value of the ship, together with her stores, tackle, and cargo, if any, which came to the hands of the defendants, or their agents or servants in the East Indies; and that a special jury should be summoned to try this issue.

The trial was accordingly had on the 7th of November 1717; when the jury found, that the said ship, stores, and tackle, at the time the same came to the hands and possession of the defendants, or their agents or servants, was of the value of £3000, and that there was then a cargo on board, of the value of £400.