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Decisions of the Superior Courts of New South Wales, 1788-1899

Cuthbert v. Hindson [1832] NSWSupC 67

shipping, charter party - covenant - New Zealand

Supreme Court of New South Wales

Dowling J., 24 September 1832

Source: Sydney Herald, 27 September 1832[1 ]

 

Monday. - Before Judge Dowling, and J. Campbell, and T Foster, Esquires, Assessors.

Cuthbert v. Hindson.  This was an action of covenant, for freight due by virtue, and under a charter party, dated 8th May, 1832, by which it was agreed between the parties that the brig Bee, belonging to plaintiff, should proceed to New Zealand, and take in 60 tons flax, and deliver the same to defendant.

The defendant pleaded, first non est factum, and secondly, that plaintiff did not perform the terms of the charter party, but entered into trade on his own account at New Zealand, and received on board articles not on behalf of defendant.  The performance, on part of plaintiff, having been proved, the defence set up was, that defendant had taken on board some small articles, consisting of a bag of sugar, on quarter chest of tea, and a small paper parcel, which he delivered at New Zealand.

The learned Judge, in putting the case to the Assessors, left it as a question for them to say, whether plaintiff had not completed the terms of the charter party, having brought up 65 tons of flax, whereas he was bound to bring up only 60; and again, whether the taking down the small articles enumerated, amounted to such a trading as to be a breach of the charter party.  The Assessors found a verdict for the full amount sought, £321 13s. 10d.

Messrs. Wentworth and C. H. Chambers for plaintiff; Mr. Norton for defendant.

 

Notes

[1 ] See also Australian, 28 September 1832.

Published by the Division of Law, Macquarie University