THE LEADING WIND.

Auckland Star, Volume XXII, Issue 95, 25 April 1891, Page 5

THE LEADING WIND.

APPLICATION FOR, WRIT OF ARREST.

At the Supreme Courb thia morning, befor Mr Brewer, Regietrar, Mr E. Heskotb applied for an order of the Court detaining Captain Hinckley, of the ship Leading Wind, in New Zealand until ho had given security for the performance of thingH in regard to the settlement of matters in dispute regarding damages sustained by the fire on the Leading Wind. Mr H. Campbell appeared for the defendant, Captain Hinckley. Mr E. Hesketh submitted that this being an ex parte application, Mr Campbell had no right to appear. Mr Campbell said the question whether this was a motion ex parie was to be decided by their own rules, and not by decisions giren in any other country. Mr Heskebh replied stating that he objected to Mr Campbell appearing as a matter of right. If Mr Campbell liked to appoar as amicus curiae he would have no objection. Mr Campbell submitted that the shutting of the defendant's mouth would be the gravesb discourtesy nob only to Captain Hinckloy.bub to a foreign State. The Registrar upheld Mr Hesketh's objection. The practice was to make an application for writ of arrest ex parte. Afterwards, if there vraa any e-round to show wrongful arrest, the defendant could apply to the Court for relief. Mr Campbell pointed oub that there was a summons before tho Courb to stay proceedings. Mr Hesketh : " But no summons has been served.". Mr Campbell said there was no one upon whom it could bo served. The Registrar did nob entertain this objection. Mr Hesketh said the application was made on behalf of Wood, Shand and Co., of Christofaurch, who had shipped 1,298 bales of flax, of the value of £3,100, by the Leading Wind. The cargo was pub on board the Leading Wind, a fire took place and their consignment of flax wa6 damaged, not by tire but by water put into the ship. Tho plaintiffs sued not only for a contribution from the sale of the flax, but also for £1,200 from the general average upon the ship. The defendant had sold his goods and also his ship. He had made no oiler to leave hia money here, and was now about to leave tho colony. Mr Thornhill Coopor, of Cbristchurch, had come to Auckland to make up an average, but was unable to do so because nocessary data and documents wore not supplied to him by the defendant. An affidavit, made by Mr Thornhill Cooper, stated that he had seen a statement made by Mr Mabin, showing that the plaintiffs wero entitled to the proceeds of the sale of their flax, £950 or thereabout in respect of 1,298 bales. From what Mr Cooper knew now he was satisfied that the plaintifls were entitled to more than £950. The owners' cargo had never left Auckland, and th 6 voyago had never commonced when tho damage occurred. Mr Hesketh quoted authority that to pour water upon cargo to extinguish a fire was a general average act, and that if the cargo was thereby injured tho owner was entitled to a contribution. In the scuttling of the ship there was a common sacrifice made for the saving of the ship as well as the cargo, therefore the owners of both ship and cargo muflb bear a share of that lose. The plaintiffs' goods had not been on fire. The captain had done wrong in selling the ship, bub all the plaintiffs said was that he had the money be had roceivad from that sale in his pocket, and was about to leave the place. Formal evidence was given by We Tait, secrotary of tho Underwriters' Association, and by Thornhill Cooper, averago adjuster. ' Mr Campbell took several technical objections to tho form of procedure, which were not upheld. Mr Campbell said on the 17th April tho plaintiffs knew what.would be the reaulb of the average statement, and did not issue the writ until the very morning when the defendant was going away. He characterised the. proceedings as one of the most disgraceful over perpetrated. William Taib, manager ot the Rational Insurance Company and Chairman of tho Underwriters' Association, was examined by Mr Hesketb. Hβ knew Mr .Thomas Mabin had been engaged in the preparation of an average statement upon the Leading Wind. "Ho had Mr Mabin's statement yesterday morning, and subsequently returned it at Mr Mabin's request. Thornhill Cooper, average adjuster, doposed that he was sent here six weeks ago to mako an average statement on behalf of the Now Zealand Shipping Company. Ho knew Mr Mabin, and knew that a statement submitted formed the preamble of Mr Mabin's average statement. The Kegistrar ruled that the plaintiffs had a good cause of action against the defendant for £50 and upwards. It was admibted that the defendant wasuboutto leave New Zealand, and it was quite cloar that the absence of the defendant would prejudice the plaintiffs in the action. Ue, therefore, made an order that the defendant tnuat deposit in Court the sum of £3,6C0, or give satisfactory security to the plaintiffs that lie will not go out of the colony for the period of three months.