cified time received intelligence of the vessel. (a) But, secondly, the evidence of the witness, who said he heard of the loss, and that the crew survived, must be taken into consideration. The plaintiff tendered it, and it was not objected to; the defendant, therefore, is entitled to the benefit of it now, especially as the Lord Chief Justice left it to the consideration of the jury. It must be taken then that the crew survived the loss of the vessel, and that fact having been established, the plaintiff was bound to call some of them, or to account for their absence, he did not otherwise give the best evidence that the nature of the case admitted, and the evidence which he had before given ought not, under such circumstances, to have been left to the jury, Williams v. E. I. Company. (b) In Bull. N. P. 293. it is stated as the first general rule of evidence, that the party must give the best evidence that the nature of the thing is capable of. (c) ABBOTT C.J. The only question is, whether in this case there was sufficient to be left to the jury as evidence of a loss by perils of the sea or by barratry? The defendants now contend that the plaintiff should have proved that which it was impossible for him to do, viz. that the ship had never been heard of, for she had been heard of, and the account received was, that she foundered at sea. The evidence given at the trial was, that the vessel, with the goods insured on board, sailed from Leghorn in April 1821, for Lisbon, (a) See Valin's Commentary, Rochelle edit. 1766. vol. ii. 141. (b) 5 East, 192. (c) See the observations upon this rule in 1 Stark. on Ev. 339., and particularly upon the case of Williams v. E. I. Company, which seems to have occasioned some misapprehension as to the nature and extent of the rule. The expression used in Bac. Abr. Evidence (I), that "the law requires the highest proof the nature of the thing is capable of," appears to be more appropriate, and less liable to misconstruction than best evidence. C 3 that 1826. KOSTER against REED. 1826. KOSTER agains: REED. that she never arrived at that place, and that a few days after her departure from Leghorn, the witness heard that she had foundered at sea, but that the crew were saved. Taking the whole of that account together, it proved a loss by perils of the sea, but we are asked to take half of it only, viz. that the crew survived; and to exclude from our consideration that which related to the loss of the ship. I think we should not be justified in so doing, and that it is impossible for us to say that at this distance of time it was incumbent on the plaintiff to send all over Europe in search of the crew of this vessel, whom we must suppose to have been foreigners, the ship being foreign, and trading between foreign ports. For these reasons it appears to me that there was sufficient evidence to be left to the jury, and that the verdict ought not to be disturbed. BAYLEY J. I am of the same opinion. When it is said that a ship has not been heard of, I take that to mean that no intelligence has been received from persons capable of giving an authentic account; and not that mere rumours have never been heard. In that sense the vessel in question had never been heard of. But although such evidence has frequently been given, it cannot in all cases be essential. In the present case the plaintiff was owner of the goods, not of the vessel, and the underwriters might have just as good means of inquiring about the crew as the plaintiff had. Why then is it not as reasonable to call upon them to prove affirmatively that intelligence of the ship had been received, as upon the plaintiff to prove the negative. In the absence of any such evidence, I think it was fair to presume that the ship perished at sea. HOLROYD HOLROYD J. I think there was sufficient primâ facie evidence of a loss by perils of the sea, and it was just as reasonable to expect the defendants to give evidence to rebut that, as to call upon the plaintiff for evidence in confirmation. 1826. KOSTER against REED. LITTLEDALE J. concurred. Rule refused. The KING against RAWLINSON, Esq. A that for many years there had been a stand of hackney- (a) The clause is as follows: " And whereas hackney coachmen and hackney chairmen frequently take their stands with their coaches and chairs in such parts of the streets so as to occasion obstructions both in the foot and carriage ways, be it therefore enacted, that from and after the passing of this act the said commissioners, or any seven or more of them, C 4 Tuesday, Where the commissioners of pavement within a certain district were authorised by act of parlia ment to direct and regulate the stands of hackney coaches within the district : Held, that this gave them power to remove a stand where it occa sioned obstructions in the carriage-way. 1826. The KING against RAWLINSON. made an order, that the stand should be removed from Howland Street into a part of Tottenham Court Road, also within the district, and due notice was given to the coachmen not to take their stand in Howland Street. The coachmen thinking that the commissioners had not power to make such an order, refused to comply with it; and R. Johnson having taken his stand in the street, an information was exhibited against him before the defendant, in order to recover the penalty imposed by the statute. The magistrate, being of opinion that the commissioners had not authority to remove the coach-stand, refused to hear the information, and advised the informant to apply to this Court for a mandamus, whereupon this rule was obtained. Scarlett and Andrews showed cause. The statute under which the commissioners of pavement acted did not give them power to make the order in question. They are enabled to direct and regulate the stands of hackney-coaches, which means that they may make such orders as are necessary to preserve good order and good conduct upon the stands. The order in question could not be made without a power to alter and remove the stands, which power certainly is not expressly given by the act. By the 9 Ann. c. 23. s. 16. power was given to the commissioners of hackneycoaches to make bye-laws binding on the persons licensed to keep hackney-coaches, and section 17. re them, may direct and regulate such stands of all hackney coaches and chairs within the limits of this act, as they in their discretion think proper; and if any hackney coachman or hackney chairman shall not comply with such directions and regulations, he or they shall forfeit the sum of 10s. for every such offence." quired quired that such bye-laws should be approved and allowed by the Lord Chancellor, the Lord Chief Justice of either Bench, and the Lord Chief Baron of the Exchequer. In 1771 the commissioners, in pursuance of the power so given, made certain bye-laws, whereby it was ordered," that no hackney-coachman shall stand and ply in any of the high or broad streets of the cities of London or Westminster, or the suburbs thereof, being of the breadth or width of thirty feet between the posts or foot pavement on each side, or of forty feet between the houses where there are no posts or foot pavement, unless it be in the middle of such streets; nor shall stand in any street where it is not of the respective breadth or width before mentioned." And then certain places are mentioned where it should not be lawful for hackney-coachmen to ply at all. Howland Street is more than thirty feet wide, and is not amongst the excepted places; and it has always been understood that hackney-coaches may ply wherever they please, provided they do not violate those bye-laws. Several statutes have been passed to prohibit them from standing in certain specified places, which would have been unnecessary had they not, but for such acts, had a right to stand there. If the commissioners have the power for which they contend, they must have power to remove the coaches altogether from the district, but the Court will not easily be induced to say that the legislature intended to give them such jurisdiction. The Solicitor-General contrà. Nothing can be more reasonable than that some power should exist to point out the places where hackney-coachmen may take their stand; and upon a reasonable construction of the 12 G. 3. 1826. The KING against RAWLINSON. |