James Aspinall Tobin, who has Survived Thomas Tobin v The Queen
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1864 |
| Date | 01 January 1864 |
| Court | Court of Common Pleas |
English Reports Citation: 143 E.R. 1148
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 33 L. J. C. P. 199; 10 L. T. 762; 10 Jur. N. S. 1029; 12 W. R. 838. See Thomas v. R., 1874, L. R. 10 Q. B. 43. Referred to, Windsor and Annapolis Railway Company v. R., 1886, 11 App. Cas. 614. See Nireaha Tamaki v. Baker, [19011 A. C. 575.
james aspinall tobin, who has Survived Thomas Tobin i . the quekn. 1864. [S. C. 33 L. J. C. P. 199 ; 10 L. T. 702 ; 10 Jur. N. S. 1029; 12 VV. K. 838. See Thomas v. It., 1874, L. R. 10 Q. B. 43. Referred to, Windsor and Annapolis Railway Company v. R., 1886, 11 App. Gas. 614. Hee Nirea/ta Tamaki v. Baker, [19011 A. C. 575.] 1. A petition of right will not lie to recover compensation for a wrongful act done by a servant of the Crown in the supposed performance of his duty. - 2. Nor will it lie to recover unliquidated damages for a trespass. - 3. The commander of a Queen's ahip employed in the suppression of the slave-trade on the coast of Africa, seized a schooner belonging to the suppliant, which he suspected of being engaged in slave-traffic ; and, it being inconvenient to take her to a port for condemnation in a Vice-Admiralty court, caused her to be burnt: - Held, that this was not a case for a petition of right ; the remedy for the wrong, if any were done, being against the person who did it. This was a petition of right pursuant to the statute 23 & 24 Viet. c. 34. The petition was as follows : - " Victoria Reg. "Let right be done. " To the Queen's most excellent Majesty. " Middlesex. The humble petition of Thomas Tobin, of, &c., and James Aspinall Tobin, of, &c.,' by T. J. Eooke, their attorney, of, &c., '[311] " Sheweth, - That your suppliants are ship-owners and merchants carrying on business in Liverpool, in the county of Lancaster, under the style or firm of Thomas Tobin & Son : " That your suppliants, as such ship-owners and merchants, have for twenty-eight years last past been very largely engaged in the African trade, and for the purposes of such trade have established on the coast of Africa, between the fourth and ninth degrees of south latitude, storehouses and factories where your suppliants' vessels have been used and accustomed to discharge their outward cargoes for the purpose of such cargoes being bartered with the natives on the coast for African produce, and where your suppliants have been used and accustomed to receive in return for such cargoes palm-oil, ivory, gum, coft'ee, and other African produce, which they have been used and accustomed to ship on board their own vessels, and bring direct to Liverpool : "That, for the purpose of superintending and managing their trade and busiuess on the said eo&st, your suppliants have for about five years last past employed on the said eoast, as iheir head resident agent there, a highly respectable and trust-worthy gentleman of the name of Maunsel Mecham, well qualified to conduct and manage their trade on 'the said coast, and several responsible officers and servants under the (a) See The London Gas-Light Company v. Tlui Vestry of (JMsea, 8 C. B. (N. S.) 215. 18 C. B. (N. S.J312. TOBIN V. THE QUEEN 1149 said Maunsel Meoham; and, as your suppliants are informed and believe, all the officers and servants so employed under the said Maunsel Mecham sire highly respectable and trust-worthy persons, and well qualified to conduct and manage the said trade under the said Maunsel Mecham : "That, in the year I860, your suppliants, through the said Maunsel Mecbam, purchased at Loaurlo St. Paul's, on the said coast, a small vessel or packet-boat then [312] called the 'Mary and Isabel,' but since called the 'Britannia,' for the purpose of carrying their goods and merchandise to and from their said factories and storehouses on the said coast; that the said vessel, which at the time of the said purchase was not registered as a British ship, was purchased by your suppliants as aforesaid for the purpose of the same remaining and being used entirely on the said coast in their said trade there; and the same was never intended by your suppliants to be brought, and in fact never was brought by them after they so purchased it as aforesaid, to any British port or place where it could be registered as a British ship; and, as your suppliants never considered that it was necessary (as they are advised imd believe it was not) that the said vessel should, for the purpose of its being used by them in their said trade as aforesaid, be registered as a British ship, it never was so registered, and consequently, at the time of its being seized and destroyed as hereinafter mentioned, it was not registered, and had no right to a national flag: " That the said vessel remained the property of your suppliants from the time of its being so purchased by them till it was seized and destroyed as aforesaid, and during all that time was used and employed solely in their said trade, and was not in any way engaged in the slave-trade : "That, in the month of August, 1862, the said vessel required repairs, and, being at the time at a place called Laridana, on the said coast, where the said repairs coulc not be done, she was by the directions arid orders of the said Maunsel Mecham taken by and under the charge of William Mabbs, a seaman in the employ of your suppliants on the said coast, to a place on the said coast called Cabenda, for the purpose of having the said repairs done at the said last-mentioned place, by D. Francisco Franque : [3133 " That the said vessel, when so taken to Cabenda aforesaid for the purpose of having the said repairs done to her as aforesaid, had on board six barrels of palm-oil as ballast, and seventy planks, to be used in the said repairs; that the said planks, which were thick red African planks, well adapted for repairing such a vessel as the 'Britannia,' and not easily procurable, and which were not spare-planks fitted for being laid down as a second or slave-deck within the meaning of the statutes for the suppression of the slave-trade, were sent by the said Maunsel Mecham on board the said vessel from Landana aforesaid to Cabeuda aforesaid, for the sole purpose of being used by the said D. Francisco Fratique in the said repairs : "That the said vessel arrived at Cabenda aforesaid for the purpose of being so repaired as aforesaid, on or about the .'SOth of the said month of August; and, in consequence of their being then no caulkers to be procured to work on the said vessel at the s^id last-mentioned place, she was, on her arrival there as aforesaid, dismantled and leftj at proper moorings there until the said repairs could be proceeded with ; and at ifhe same moorings she remained so dismantled as aforesaid, and having on board tjie said barrels of palm-oil as ballast, and the said planks to be used for the said repairs as aforesaid, from that time until on or about the '20th day of September, 1862, when she was seized as a vessel engaged in the slave-trade, by and under the orders of Captain Sholto Douglas, then being commander of your Majeaity's ship 'Espoir,' and employed under the authority of your Majesty for the suppression of the slave-trade, according to the statutes in such case made and provided; and, on the alleged ground that the said vessel was not fit for a voyage to St. Helena, being the place within your Majesty's dominions to which she ought to have been taken for [314] the purpose of being brought to adjudication in the Vice-Admiralty court there touching the said seizure as aforesaid, she was afterwards, on the said last-mentioned day, with the said barrels of palm-oil, the said planks, and other goods and property of you* suppliants then being on board thereof, wholly burnt and destroyed by the said Captain Sholto Douglas, so being such commander, and so employed Under the authority of your Majesty as aforesaid, and in the supposed exercise of his duties under such last-mentioned authority : " That the said vessel was not at the time of her being so seized and destroyed as 11BO TOBIN V. THE QUEEN 16 C. B. (N. 8.) 315. aforesaid in any way engaged in the slave-trade, or liable to be condemned as so engaged: "That the value of the said vessel, palm-oil, planks, and other goods and property of your suppliants so burnt and destroyed as aforesaid, amounted at the time of their being so burnt and destroyed to at least the sum of 10001. ; and that, by reason of the premises, your suppliants have not only lost their said vessel, palm-oil, planks, and other goods and property as aforesaid, but have abandoned their said African trade, and been greatly injured in their credit and reputation, and in their said trade and business, and have thereby sustained damages to the amount of 10,0001. "Your suppliants therefore humbly pray that your Majesty will be pleased to do what is right and just in the premises, and cause your suppliants to be reimbursed and compensated for the losses, damages, and injuries so sustained by them as aforesaid. Dated, fec. " william bovill, }ä , , ,, ò,-m. m , ò "HuuH M'A. cairns [Counsel for the said Thomas Tobin "jameh kemplay, ) and James Asl)lna11 Tobl"' And tha said Attorney-General informs the court [315] here that the said petition of right is bad in substance. [The ground of demurrer stated in the margin was, that " the said petition of right does not shew that the Crown is in law responsible for any of the alleged unlawful acts of Commander Sholto Douglas."] And hereupon, on the 21st of December, 1S63, the suppliant James Aspinall Tobin suggests, and gives the court here to understand and be informed that, since the presentation of the said petition of right, and before this clay, the suppliant Thomas Tobin died: Therefore let no further proceedings be had in the said petition of right at the suit of the said Thomas Tobin. And as to the demurrer of the Attorney-General on behalf of Her Majesty, the...
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