Williams against The East India Company
| Jurisdiction | England & Wales |
| Judgment Date | 29 November 1802 |
| Date | 29 November 1802 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 571
IN THE COURT OF KING'S BENCH.
See Aflalo v. Lawrence and Bullen, Limited [1903], 1 Ch. 326; [1904], A. C. 17.
williams against the east india company. Monday, Nov. 29th, 1802. Where the law presumes the affirmative of any fact, the negative of such fact must be proved by the party averring it in pleading. So where any act is required to be done by one, the omission of which would make him guilty of a criminal neglect of duty, the law presumes the affirmative, and throws the burthen of proving the negative on the party who insists on it. Therefore where a plaintiff declared that the defendants, who had chartered his ship, put on board a dangerous commodity (by which a lo~ss happened) without due notice .to the captain or any other person employed in the navigation, it lay upon him to prove such negative averment. And it being shewn that the commodity was delivered by the defendants' officer, and received by the first mate of the plaintiff's ship (which first mate was dead, and no other person was present to depose to the conversation which passed between them); Held that the best evidence of the fact could only be given by the defendants' officer who delivered -the commodity on board to such first mate, and that the action could not be sustained by secondary evidence. [See Aflalo v. Lawrence and Bullen, Limited [1903], 1 Ch. 326 ; [1904], A. C. 17.] The declaration contained four counts, the first of which was abandoned. The second stated, that the plaintiff, before and at the time of making the charter-party of affreightment after-mentioned, and from thence continually afterwards until the committing the grievance and happening of the loss after-mentioned, was the owner of a ship called the "Princess Amelia," whereof(one J. Bamsden, for and during all the time aforesaid, was master; which said ship, at the time of making the said charter-party, was at anchor in the river Thames. That the plaintiff, on the 14th [193] of February 1797, by :a certain charter-party made between him, &e. and Eamsden, as captain of the ship of the one, part, and the East India Company of the other part, let her to freight to the Company; (in which charter-party was a covenant for the owners to receive and take on board the ship, and well and securely stow and place therein, all such goods, &c. as should be laden or tendered to he laden on board by the order of the Company or their servants, &c.). That the ship sailed under such charter-party on the 20th of July 1797 to the East Indies on her voyage, and duly discharged her outward-bound cargo, and remained in the Company's service in the East Indies, by virtue-of the said charter-party, until and at the time of the committing of the grievance and happening of the loss after-mentioned. Yet'the Company, by their agents, while the ship so remained in their service, &c. wrongfully, unlawfully, and unjustly, sent, and caused and procured to be sent, amongst other goods and merchandize, to and on board the .said ship or vessel, for the purpose of being conveyed therein from Bombay in the East Indies to Tellicherry, a certain package, containing therein certain oil and varnish of a combustible and inflammable nature, without giving due or sufficient notice or intimation thereof to the said J- Kamsden,-so being master of the Said ship, or to any other person or persons concerned or employed in the navigation thereof, as^the said defendants ought to have done, in order that the said Eamsden, or such person or persons concerned or employed as last aforesaid, might stow and deposit the said last-mentioned package in such part of the said last-mentioned (a) The case was argued and stood over for consideration before Lord Ellen-borough took his seat on the Bench. (6) I.e. to take effect if the Court do not alter their opinion in the course of the same term. 5.72 WILLIAMS V. THE EAST INDIA...
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