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that “it would have been to sacrifice the goods The learned Judge told the jury, in effect, that the entirely to send them out;" that “they were available defendants were justified in what they did, provided in this country, but would have been sacrificed by what they did was the reasonable course to take, hav. going out."

ing regard to the interests of all parties : and the jury Mr. Campbell, the broker to the Liverpool Under- found for the defendants, -adding, that they believed writers' Association, stated that the goods were satu- their witnesses. rated with salt-water, and rendered unmerchantable The jury were not agreed upon the question whether (which he explained to mean, in such a condition that or not the goods were returned absolutely and unconthey could not have been disposed of at the Havana as ditionally. merchantable or sound goods), quite irrespective of A rule was obtained to set aside this verdict, upon any question of freight;" that the Manchester and the ground of misdirection, in telling the jury, that Bradford goods, the freight upon which were 6301., or if it was unreasonable, having regard to the interests more than half the entire freight, were perishing of all parties, that the goods should go on, the defendrapidly, and quite unfit for re-shipment to the Havana, ants were justified ; which rule was argued in Hilary and that “ the great bulk of them, if sent on, would Term last, before Erle, C.J., myself, Willes, J., have been almost worthless ;” that the goods had been and Keating, J., when the Court took time to condeteriorated to the extent of 55 to 60 per cent., and sider. that “a delay of a week in selling them would have On the part of the plaintiff it was insisted by Mr. made a material difference ;" and that, “unless they Brett and Mr. Quain, in an argument of uncommon were re-calendered and re-printed, they would not force and learning, that the ship-owners were entitled have been available for any purpose in the Havana.” to insist upon having the goods returned to them, if In answer to the jury, he stated that probably the any substantial part thereof was capable of being carprinted goods might have been sent back and re

ried on in specie to the Havana, and that it mattered printed, but that, “because of the rice having got into not how injurious this might be to the shippers, or almost every package, there was an amount of mildew even indeed to the ship-owners ; and that, as the shipwhich rendered that unadvisable."

owners were not found to have intended to give up the Mr. Alexander, surveyor to the Mersey Dock Board, yage, the sale of the goods, however reasonable it confirmed this evidence. Mr. Fallows, a calenderer might be, was a breach of contract, and must be and packer, gave evidence to the same effect, and, answered for in damages. with respect to the blankets, stated that a great many This argument, as applied to a case where the act of of them were in such a state as that, “ if you took one the shipper in taking possession of the goods is wrong. by one end, the other would fall off.” He added that ful and unauthorised, is sustained by a series of “all the goods were not utterly worthless,” but that, authorities cited in the argument, and is unanswerable

, in his opinion, “they would have been so if kept for even to the extent of showing that the ship-owner is six months or less."

entitled to the entire freight, less discount. Upon finding the state of the goods, the defendants It is inapplicable to a case where the goods are came to the conclusion that the best thing to do for all taken back absolutely and unconditionally by consent parties, was that the goods should be at once sold ; on both sides, the further carriage of the goods being which they were on the 12th of September, when they intentionally dispensed with ; and ordinarily in such realised a gross sum of 76871. 18s. 2d.

a case the ship-owner becomes entitled to freight pro After the goods had been taken by the defendants rata itineris. to Liverpool, and before the sale, a correspondence Whether the argument is applicable to the intermetook place between them and the owners of the vessel, diate case of the goods being returned, not absolutely, which ripened before the sale into a claim for the but with an authority to the charterer to act for the entire freight to Havana, or that the goods should be ship as well as for the cargo, and such authority haydetained in order to proceed in the vessel. In the ing been acted upon, and expense thereby incurred, result, the sale was allowed to take place, but, as we before any countermand, is the question which we shall assume in favour of the plaintiff, without preju- have to consider. dice to his claim.

That question divides itself into two branches,Thereupon the present action was brought, claiming first, as to the lawfulness of the act of the defendants

, in one count damages for wrongfully preventing the apart from the express opposition of the owners to the plaintiff from carrying on the goods to the Havana sale taking place. and earning freight, and in another count freight for As to this, we think it clear that a sale of the the carriage of the goods. This latter count, to which daniaged goods was within the scope of the defendants, the defendants had pleaded a set-off of the moneys authority under the letter of the 9th of August, pro paid by them for salvage on account of the vessel, was vided such sale was the reasonable course to take, abandoned at the trial before Willes, J., at Liverpool; having regard to the interests of all parties. Under and the plaintiff relied upon the first count, to which the extraordinary circumstances, it became the duty of the set-off was inapplicable,

the plaintiff as master to act for the best, with a due

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regard to the safety of the cargo. A great responsi- in the annexed schedule, ---applics also to cascs in which bility rested upon him in respect of this duty, which the defendant succeeds. it Fas his interest to be rid of. The state of the cargo

This was an action for unliquidated damages for not also was sure to raise difficulties at the Havana ; and unloading within a reasonable time, and had been tried the master was answerable for part of the freight, so

before the sheriff by Judge's order made during the that, at the best, the certain present risk and incon

vacation. Verdict for the defendant. On taxation Fenience of keeping the cargo could only be paid for the Master taxed the defendant's costs on the lower in future uncertain and litigious profit.


scale. expense had been already incurred. It was necessary to incur more. The vessel had been necessarily

Prentice, for the defendant, now moved for a rule to lightened of a great part of her cargo, whilst she was show cause why the Master should not review his taxin a state in which it was doubtful whether she could ation, and tax the costs on the higher scale. The ever be repaired.

Master had acted on the 7th section of the Directions Under these circumstances, the plaintiff gave the to the Masters, H. T. 1853; but he submitted that authority to the defendants, without which they de- that section did not apply,clined to act.

The circumstances, therefore, under 1st. Because only plaintiff's costs are mentioned which the letter of the 9th of August was given esta- in it. blish beyond doubt the intention which it clearly

2nd. Because it only contemplated such actions as expresses, that the defendants, in receiving the cargo,

are properly triable before the sheriff, which this action did not simply consent to take upon them the burthen was not, having been for unliquidated damages. and expenses of representing the vessel, which they

The scale of costs annexed to the Directions is headed were under no obligation to do, but either absolutely

“General Allowance for Plaintiffs and Defendants ;to put an end to the voyage, or at least with an autho- but that could not supply the omission in the 7th rity to do the best, having regard to the interests of section referred to. all parties. Indeed, the plaintiff, though he stated

ERLE, C.J.-I am of opinion that there should be that he gave no authority to sell the goods, and that

no rule. The result of the directions in section 7, and they went to Liverpool because Sparke said it was

of the schedule of charges taken together, is, that, in the best place to dry and prepare them, admitted that Sparke's offer was, to do his best for him as well as

cases properly triablo before the sheriff, the costs of the cargo, upon which the letter of the 9th of August the defendant, if he succeeds, are to be taxed on the

lower scale. This we also understand to be the general was given, and that the plaintiff "left it to Sparke to do the best he could."

practice among the Masters. The defendants thus had authority to sell as they

But Mr. Prentice argues that this case was not prodid, unless that authority was countermandable and perly triable before the sheriff. Now, he has not

attempted to set aside the verdict; but, on the concountermanded by the owners of the vessel. In our opinion, however, it was an authority which could not trary, adopts it, and we cannot allow him to endeavour

at the same time to impeach the verdict on one ground, under the circumstances be countermanded after the

and to deal with it as valid on another. defendants had acted and incurred expense in acting upon it as they did, inter alia, by incurring the ex

WILLIAMS, BYLES, KEATING, JJ., concurred. pense of taking the goods to Liverpool long before any

Rule refused, objection was made. Therefore, the plaintiff's argument has failed; and,

C. P.

ELDRIDGE v. STACEY having carefully considered the evidence, we think the verdict for the defendants is in accordance with

6 Nov. 1863.

and Others. the manifest justice of the case.

Distress-- Abandonment.
Rule discharged.

A landloril may get over a fence to make a distress.
C. P.

Ilhcre a distrainor is driven out by force on the 6th of 3 Nov. 1863.

a month and enters again on the 26th, it is a question

for the jury whether he intended to abandon his distress Taxation-Costs.

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or not.

Section 7 of Directions to the Masters, H. T. 1853, This action was tried at Croydon before Bramwell, thich directs that, In all actions on contract other than B., and a verdict was found for the defendants. tases wherein, by reason of the nature of the action, no The action was for an illegal distress. torit of trial can be issued, where the sum recovered or On the 6th of November, finding the front door paid into Court, and accepted by the plaintiff in satis- locked, the defendant went into a neighbouring house, faction, or agreed to be paid on the settlement of the got over a fence, and entered by the back door, he aica, shall not exceed 201. (without costs), the plain. then opened the front door and let his man in. tif': costs shall be tased on the lower scale of allowances The plaintiff turned him out with violence, and, on

6 Nov.

1863. }

November 26, he entered again and distrained, break. sent such goods as he pleased. Neither of the three had ing open the door with a sledye-hammer.

any authority to pledge the credit of the others for the The Judge asked the jury whether the defendant goods which he might send to the ship, and each was intended to abandon the original distress or not, to share in the profit according to the amount of goods which original distress, he told them, was legally he might send. made.

The plaintiffs rested their case on the written agreeLaxton, moved for a new trial, on the ground of ment of the 29th of May, which they contended made

the three persons partners, and each liable for the misdirection, citing, Brown v. Glenn, 16 Q. B. 254 ; s. C. 20 L. J. Q. goods purchased for the adventure, and therefore that

the defendant was liable for the goods which were pur. B. 205 ;

chased by Pearson, and shipped on board in pursuance Ryan v. Shilcock, 7 Exch. 72 ; 8. c. 21 L. J. Ex.

of the agreement. 55; and Co. Litt. 161a (Enclosure).

The learned Judge held, that this was a separate ad

venture as regarded the three, but that when the entire ERLE, C.J.-I do not think the distress illegal | 90001. was put on board, then it would be there for because the person making it got over a fence. It was the purpose of the three ; and that neither of the three a question for the jury, whether the landlord intended had authority to pledge the credit of the others for the to abandon his distress by waiting from the 6th to the goods he might put on board, unless the agreement of 26th of November, or whether he was afraid of the the 29th of May gave that authority, which, under the plaintiff's violence, and the Judge was right in leav-circumstances, he thought it did not; and therefore ing it to them.

he directed a verdict for the defendant, giving the

plaintiffs leave to move the Court to enter a verdict for WILLIAMS, BYLES, and KEATING, JJ., concurred.

them on the point as to the construction of the agree

Rule refused. ment.
C. P.

Lush, Q.C., now moved accordingly.
HEAP and Others v. Dobson.

The question is, whether the defendant is liable as a

partner of Pearson, and this turns entirely on the conPartnership-Agreement.

struction to be put on the agreement of the 29th of An agreement between A, B, and C, that they will May, which is to the effect, that it is mutually agreed cach put 30001. worth of goods on board a vessel for a

between Pearson, the defendant, and K, that the joint adventure, the profit and loss of which is to be steamer that day chartered on their joint act and risk, shared between thein, does not make them partners ; was to be loaded with goods to the amount of 90001., therefore a person who has furnished A with his 30001. the cargo to be on their joint account, each of the parworth of goods, cannot sue B or C for the amount. ties contributing 30001. This, I contend, constituted

an ordinary partnership, each partner taking profit and This action was tried at Guildhall beforo Erle, C.J.,

loss, and the learned Judge was wrong in asking the under the following circumstances :

The plaintiffs sued the defendant to recover 13771. 55. jury whether they believed Pearson in stating that the for the value of flannel goods and others of a similar sible for each other's share, and then directing a

three had agreed between themselves not to be respondescription, under the following circumstances :-It

verdict for the defendant. He cited, appeared that in May, 1862, one Pearson, of Hull, was

Külshaw v. Jukes, 2 N. R. 161; s. C. 32 L. J. the owner of the steamer “ Peterhoff," and that he

Q. B, 217. chartered the vessel to the defendant, who was a wine and spirit merchant of Hull, and that on the 29th of WILLIAMS, J.-Each party finds his own share in May, Pearson, the defendant, and one K, entered into the adventure : it is no partnership. a written agreement each to contribute 30001. for the purpose of procuring an outward cargo to an open port

ERLE, C.J.-The rule must be refused. I am of the in the Confederate States of America, where Pearson

same opinion as I was at the trial. had a cargo of cotton, turpentine, &c., which he wished

BYLES and KEATING, JJ., concurred. to dispose of and bring home, and they were to share

Rule refused. in the profits if they could get it home. In point of fact, no money was contributed according to the agreement, but each of them sent what goods he pleased.

C. P.

ALLARD V. BOURNE and The defendant said he would send only goods in the 9 JUNE, 9 Nov. 1863.

Others. way of his trade as a wine and spirit merchant. Pearson sent the goods which were the subject of this action; he

Liability of Building Society for Work done. bought them of the agent of the plaintiff's, who called on If the secretary of a friendly building socicty formal him and pressed him to buy. The invoices were made under the 6 & 7 Will. 4, c. 32, gives orders for work, out to Pearson & Co., the name of Pearson's firm, and K and the work is actually done, the trustees of the society


are bound to pay for it, if there be evidence to satisfy their minds, give orders verbally, and get work done, the jury that the secretary was the general agent of the they must pay for it.] dirctors, cren though the work was not ordered at a They were here stopped by the Court, board meeting.

Waddy, in support of the rule. This was an action brought against the defendants as

The argument on the other side would be applicable trustees of the Planet Benefit Building and Investment if the directors, who sanctioned the repairs, were sued Society, established under the provisions of 6 & 7

individually. Will 4, c. 32, for work and labour bestowed on repair

[BYLES, J.-The directors may appoint agents, and ing certain houses, of which the defendants (as such Spurgeon swears he was an agent.] trustees) were mortgagees. A verdict was found for

They may appoint agents, but how? Five directors the plaintiff for 391. 148.

are necessary to make a quorum. 9 JUNE, 1863.

[KEATING, J.-What rule is there that the directors

shall not authorise repairs except by minute.] Huddleston, Q.C. (Waddy with him), obtained a

There were only two directors present. rule, calling on the defendants to show cause why the

[WILLIAMS, J.—Then if all the directors with their verdict should not be reduced by the sum of 291. 14s.

chairman were together, and sent for a man and told for work done to one of the houses, on the ground that him to execute repairs, it would not bind them unless there was no evidence to show that any authority was

entered in the minute book !] given by the defendants to execute the repairs in ques.

We do not contend that; but here there was no tion, so as to fix them with liability. At the trial the resolution, Spurgeon would not call a board in order rules of the society were put in evidence, and contained (inter alia) the following provisions :

to save expense, but says, I spoke to A, I spoke to B.

[BYLES, J.-You have a difficulty to get over before “The society shall be managed by a board of not this ; Spurgeon (gavo tho order, and, ho says, he was less than nine, nor more than twelve directors . .

an agent.] five shall compose a board. The board of directors

Ridley v. The Plymouth, Stonehouse, and Devonport shall also ineet as often as the business of the society Grinding and Baking Company, 2 Exch. 711, is in my shall require their attention ; they shall order the pay favour, and shows that the plaintiff ought to show ment of all moneys due from, or to be advanced by, that Spurgeon had authority for what he did, besides the society, such order to be entered in the minute which, he (the plaintiff') was a member of the society, book and signed by the chairman. The directors shall

and must have known its rules. have power to appoint agents or other officers ... Each director who shall attend the meetings of the ERLE, C.J.—This rule must be discharged. The board within . . . . shall be allowed the sum of 58. society have had the benefit of the work and the .... The secretary shall enter minutes of all resolu- materials provided, the order having been given by tions and the business of the society in a rough minute an officer of the society, and the plaintiff believing book; the same shall be fairly copied into another, to that it was ordered by the society, and several membove read as part of the business of the next meeting, bers of the society being well aware that the work was both to be signed by the chairman . : . The secre- doing ; and now, having got the benefit of the work, tary shall give immediate information to the chairman when the time arrives to pay for it, they say that of anything that may come to his knowledge which he it was not ordered in strict compliance with the rules apprehends will be of advantage or disadvantage to the of the society. The argument fails in point of fact, as society, in order that they may deliberate . ..." there is no rule that excludes the society from giving

It appeared that the repairs in question were ordered the order they have given. The rules gave power to by one Spurgeon, who was then secretary to the the directors to appoint agents, and Spurgeon had miety. He gave evidence to the effect that he did not been appointed the general agent, and he was the call a moeting of directors, as he did not think it worth agent who had ordered the repairs to the house. I while to go to that expense, but that he mentioned the think the orders given were within the scope of his fact of the repairs being ordered to two of tho directors, authority, as it would be very wasteful, for instance, and that they approved of what he had done.

if an order to repair a broken window could not be

given by the rules without convening a board of 9 Nov. 1863.

directors to give the order, and paying them 5s. each Shee, Serjt., and Gilmore Evans, showed cause.

for their attendance to give the order: and this was They contended that the directors by the rules had only a question of degree. I think the jury justificd in power to appoint agents, and that Spurgeon was evi- the verdict at which they had arrived. dently their agent for ordering these repairs, as well as their secretary, and that it was not necessary that WILLIAMS, J.-I am of the same opinion. There ETETy order should be signed by the chairman. was some evidence from which the jury might infer

[ERLE, C.J.-Private individuals may agree to give authority was given to Spurgeon, and plenty of eviorders signed in a certain way; yet if they change dence to show the defendants were aware that work had been done of which they reaped the benefit. simply an embarrassing repetition of the plea of not Smith and Others v. The Hull Glass Company (11 C. guilty already pleaded, and also an attempt to make B. 897), goes further than this ; there Jervis, C.J., out that if defendant is a foreigner, and he does any says, “the ground upon which I am disposed to hold injury to the plaintiff on the high seas, he is not the company liable in respect of the goods supplied on amenable to the English law, although he had appeared the orders of the chairman, the deputy-chairman, and and pleaded. Formerly such a plea would have been the secretary, is, that these orders were subsequently bad for duplicity. adopted by the directors. The goods were delivered

Archibald, in support of his rule, my object was to upon the premises, to persons acting in the management of the business of the company, and it must be put the real facts on the record in so novel a case

as this : for it may well be that in the question of assumed with the knowledge of the directors, and wero used in the manufacture for which the company defendant is Swede or English, as the cable was put

negligence it will make a serious difference whether was established. That would be equivalent to a fresh order by the directors, and would entitle the plaintiff's down under her Majesty's charter in a part of the

Channel beyond three miles from the coast. The to recover. There is no pretence for saying it is neces

Court will allow a plea, if they cannot see it clearly sary the orders should be given by a board."

covered by a plea of not guilty. BYLES, J.-I am of the same opinion. Even assum- Sect. 52, Common Law Procedure Act 1852 ; and ing that less than five directors cannot give valid Frankum v. Earl of Falmouth, 6 C. & P. 529 ; orders, they had power to appoint agents, an unquali- 2 Ad. & E. 453 ; fied and unlimited power to appoint agents for general | were cited. purposes. Spurgeon swears, “I was their general

ERLE, C.J. - Notwithstanding the difference of agent.” It is argued, he ought to be so appointed at a meeting of at least five directors, non constat that he opinion of my learned Brother Williams, I consider

that the plea should be allowed. was not. The question is one of evidence.

WILLIAMS, J.-I entertain the same opinion I held KEATING, J.-The evidence of Spurgeon was in

at Chambers, and I think the plea should be disconflict with that of some of the other witnesses, and the jury gave credenco to his statements. There allowed, because it is uncertain what is the real

defence. It is very important that Judges should see, certainly was evidence to show that the directors knew

in allowing pleas at Chambers, that it is plain what the work was done.

Rule discharged.

defence is going to be set up. It appears to me to be one of those pleas, too common nowadays, which en

able a defendant at the trial to set up a defence totally C. P. THE SUBMARINE TELEGRAPH

different from the one he instructs counsel to prepare. 10 Nov. 1863. COMPANY v. Dixon.

The first part of the plea states that the defendant is a Pleading-Negligence.

foreigner, and that the injury was committed out of

the realm of England. That I can quite understand A plea will not be disallowed as embarrassing, simply

as one defence on which the defendant relies, but then on the ground that it reveals more than one defence to

comes the second part of the plea, which develops a the action.

complete defence, showing there was no negligence. It WILLIAMS, J., dubitante.

is impossible, therefore, to see whether the plea denies In this case Archibald had obtained a rule nisi to rescind an order of Williams, J., disallowing a There is doubt and ambiguity about it, and I

the negligence, or admitting it, denies it to be actionThe declaration was for negligently managing a ship consider it conceals the real defence. and tackle in the English Channel, whereby portions of the submarine telegraph cable, laid down under her BYLES, J.--I have great respect for the opinion of Majesty's charter, were injured. It is sufficient to my Brother Williams, but nevertheless, it seems to me state that the plea in question alleged that the defend that it would be dangerous to reject this plea. It may ants were aliens domiciled in Gottenburg, that the be that the circunstance of the defendant being a vessel was Swedish on a voyage from Alicante to Swede, will make a difference in considering the quesGenoa, and that in the place in which the alleged tion of negligence, or that the duty of a Swede and an injury was done, the vessel, in the ordinary course of Englishman might differ under the circumstance of navigation had cast anchor, being more than three miles the royal licence by the charter, or that the injury from the coast, and without the realm of England, having occurred in the ordinary course of navigation, without having any notice of the position or existence the defendant, if a Swede, may not be liable. of the cable, and that on drawing up the anchor the cable was accidentally drawn up and a little injured.

KEATING, J.--I cannot see distinctly that it might

not become material that the circumstances stated in There was a plea of not guilty among other plens.

the plea should be set forth on the record. Rochfort Clarke now showed cause; the plea is

Riile absolute,


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