Page:The English Reports v1 1900.pdf/1029

On the 24th of January following, the cause was heard upon the equity reserved; when the defendants (having previously obtained leave for that purpose) moved for a new trial, which the court did not think fit to grant; but declared, that the Company's agents having paid £300 for the pretended purchase of the said ship, the said £300 ought to be deducted out of the £3400. And, as touching interest for the residue, the defendant's counsel insisting, that the jury had the said interest under their consideration in their said verdict, his Lordship, upon a perusal thereof, declared, that the said verdict excluded all consideration of interest had by the jury; and that therefore the plaintiff ought to have interest for the said £3100, and that such interest ought to be Indian interest, from the 9th day of June 1702, being the time the said ship came to the defendants hands, and referred it to the Master to compute interest accordingly; but in regard Indian interest did not always bear a certain rate, the Master was therefore to make such his computation of interest, according to the medium-rate of interest for the years aforesaid; and what the Master should find to be so coming to the plaintiff, for principal and interest, the defendants were decreed to pay; first deducting thereout, what it would have cost to have insured the remittance of so much money from India to England; and the defendants were also ordered to pay the plaintiff his costs of the said suit and at law.

From these decrees and orders the defendants appealed, insisting (T. Lutwyche, J. Hungerford), that they were neither guilty of fraud or force, nor gave any directions for what Catchpole did; and therefore ought not to be charged with the value of the said ship and cargo. But if the appellants were to be charged with the value of the ship and cargo, yet they ought not to be charged with the value thereof, as stated by the verdict, the true value not being in any sort near what was thereby found. That it did not appear, that the ship and her out-set here in England, before she was worn and damaged by her long and perilous voyage to the East Indies, was worth what was found by the verdict; otherwise the respondent, when called upon before the Master, and at the trial, would have proceeded to prove what such cost really was; and not trust to notional or conjectural values, and the uncertain judgment of [385] sailors; especially when it was considered, that such proof of the actual cost of the ship and cargo in England, which was a proper and necessary proof to be made, was in the respondent's own power alone to make; and his meaning in this particular appeared more clear, in that he did not proceed upon his bill, which was expressly brought for the purpose of examining aged and sea-faring witnesses, for above ten years together; and consequently, by so long a delay, he hoped to fix excessive damages on the appellants, when the nature of the case was forgot, and the witnesses, who could controvert the facts abroad, were dead. That the appellants were charged with near eighteen years interest, and this Indian interest too, which was near double the interest allowed in England; whereas they ought not to pay any interest, much less such great interest, and which, if allowed, the respondent would then profit by his own delay, for though he filed his bill on the 27th of February 1703, and the appellants put in their answer on the 23d of May following, yet he never proceeded one step for above ten years; and if he was to receive eight or nine per cent. interest, it would amount to more than consequential damages, which the decree had denied him. And as to costs, the appellants ought not to have been charged therewith, since the respondent had failed in the following charges of his bill: 1st, He thereby demanded £10,000 damages for the overthrow of his voyage, but the court did not think fit to relieve him therein; so that his bill, as to that demand, was in effect dismissed. 2dly, He claimed £6000 for his ship, besides his cargo; and, by his charge brought in before the Master, he claimed for the ship and cargo together £17,073 4s. which the Master reduced to £4000, and the verdict to £3400.

On the other side it was contended (W. Thompson, S. Cowper), that the decree, as to the interest, was founded upon the rules of reason and justice, and the constant practice of the court; for as the appellants had had the respondent's money ever since the 9th of June 1702, in India, (where it was common for them to borrow at £12 and £15 per cent. and sometimes at £20 per cent. of which they made very great gain,) it was highly reasonable that they should pay the respondent at least a medium-rate of interest; especially if it was considered, by what unwarrantable methods Catchpole got the ship into the appellants custody. That if any interest was to be paid, it necessarily followed, that the same ought to be Indian interest, or the interest