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tive, and found that she could in that case only have construction of the condition in the charter-party, that taken 865 tons. The learned Judge thereupon directed the ship should be capable of carrying 1000 tons of the verdict to be entered for the plaintiff, reserving weight and measurement. The parties are making a leave to move to enter the verdict for the defendant, if charter-party of a ship in Liverpool, and they agree that upon the true construction of the charter-party these she is to go to Sydney, and that a lump sum is to be findings entitled him to the verdict.

paid for freight; but then, says the freighter, “I will James, Q.C., in Michaelmas Term, obtained a rule only pay the 15501. on condition that you warrant that accordingly, and also a rule for a new trial, on the and measurement ;” and the shipowner says, “my ship

the ship is capable of taking a cargo of 1000 tons weight ground that the learned Judge ought to have directed the jury that the charterer was entitled to load such

Then comes the

is capable of taking that amount." proportions of weight and measurement goods as he question, with regard to what standard is that to be cal

culated ? Mr. James contended, on moving this rule, pleased.

that it was a warranty that the vessel would take 1000 Mellish, Q.C., and Kemplay, showed cause. tons of any weight and any measurement that the

The question in the present case is, as to the freighter chose to put on board. But that could never meaning of the condition that the vessel shall carry have been the intention of the parties, as it would put 1000 tons weight and measurement. Is it a warranty, the shipowner completely at the mercy of the freighter. 1st, that the vessel would carry 1000 tons weight and When a ship is loaded, three things are to be conmeasurement if loaded in the ordinary way? or, 2nd, sidered—first, to fill the ship with goods; second, to that it would carry 1000 tons if loaded as ships load her so as to sink her to the water-line ; third, so to generally are in the Sydney trade? or, 3rd, that it load her that she shall neither be too deep in the water would carry that amount if loaded any way the char- nor too high out of it. All this can only be attained by terer chose ? The third is quite out of the question. proportioning the weight and measurement goods acIt must have been apparent that it could not, so cording to some rule, and I think, therefore, it is clear loaded, carry the stipulated amount, and that never that this condition must mean 1000 tons of weight and can have been the intention of the parties. It is sub- measurement in reasonable proportions. Then, are mitted that the first construction is the true one ; viz., the reasonable proportions to be considered as those that it would carry the amount if loaded reasonably which are ordinarily adopted in loading ships, or as in the ordinary way. If the charterer intended to confined to those generally used in loading ships for stipulate that it would take 1000 tons if loaded as ships Sydney? I think that here the meaning of the generally are on a voyage to Sydney, this should have parties as to the capacity of the ship must have referbeen in terms inserted in the charter-party. The ence to an ordinary cargo of goods. I think it means mere fact that the voyage is to Sydney, is not enough the capacity to take a cargo of 1000 tons of ordinary to warrant such a construction, as it might well be and usual goods in the port of Liverpool wherever the that the charterer in this case had such a cargo to ship may be bound for. Now the jury have found send as might have been loaded in the ordinary way. that this vessel was capable of taking 1000 tons weight

and measurement of such goods, and therefore, if I Baylis (Edward James, Q.C., with him), in support

am right in the construction I have put on the contract, of the rule.-It was for the owner of the vessel to know

this rule ought to be discharged. its capacity; and this condition must, therefore, be construed strictly against him. There is no limitation MELLOR, J.--I am of the same opinion. The deof the right of the charterer to put any cargo he pleased fendant here hires a ship for a voyage to Sydney, and on board, nor that he should load in any particular he is to pay 1,5501. for that voyage in full, "on conproportions. At all events the contract must be con- dition of her taking a cargo of not less than 1000 tons strued with reference to a voyage to Sydney, and, of weight and measurement.” Now I think that these therefore, the capacity of the ship must mean its words are intended as a test of the general capacity of capacity with reference to the cargoes carried on such the ship, and are not inserted with a view to the goods a voyage,

which are to go to any particular port. I think, Cockburn v. Ale.cander, 6 C. B. 791 ;

therefore, under these circumstances, the plaintiff Moorsom v. Page, 4 Camp. 103 ;

ought to succeed in this action. Cuthbert v. Cumming, 11 Exch. 405,

Rule discharged. were referred to.

BLACKBURN, J.-- In this case the point is one of C. P. considerable nicety, though it lies in a very small


CANAL COMPANY. compass. It is not, however, a matter that is capable 18, 20 JAN. 1864. of being elucidated by argument, the statement of the case being all the argument that is possible, and there

Compensation case

- Local and Personal Act. would, therefore, be no advantage in taking time to By a local and personal Act a body of commissioners consider our judgment. All turns on what is the true was appointed to summon a jury to assess the damages

to be paid by a certain canal company for injuries sus and were contained in the underground beds and strata tained by the owners of land, or any interest in land, by in which the said shafts were sunk, and which were reason of the making and maintaining of a canal, and situate between the said shafts and the said reservoir, through the flowing, leaking and oozing of water from a and formed the natural sides and bottom thereof, to reservoir; and the commissioners were to give judgment flow, &c., without the knowledge or default of the for the amount assessed, such judgment to be final and defendants, from and out of the said reservoir through conclusive to all intents and purposes, and not to be the said natural sides and bottom thereof, and to perremoved by certiorari. Toa declaration upon a judgment colate into and through the said beds and strata, and of the commissioners, it was pleaded1st, that the into the said shafts. damages were assessed in respect of matters not in the The replication was, in estoppel, as to these two jurisdiction of the commissioners; 2nd, that the damage pleas, setting up the judgment. occurred by reason of the percolation of water through Demurrers and joinders in demurrer. porous strata forming the sides and botloin of the reservoir into a shaft of the plaintiff's, which had been sunk by

18, 20 Jan. 1864. him, and not by reason of any act or default of the

Field (Hayes, Serjt., with him) for the demurrer. company : :

This local Act was in existence long before the Held, that the former plea was good, and the latter bad. Lands? Clauses Act, and differs greatly from it. It

gives power to the defendants to do certain works, and DEMURRER to pleas and replication. The declaration provides that the Act itself shall be deemed sufficient was on a judgment of a certain body of commissioners to indemnify the company for the acts done under it created by a local and personal Act (32 Geo. 3, c. 100), (section 1), and establishes (section 26) a certain body and alleged that the plaintiff was an owner of certain of commnissioners for estimating and adjusting all lands and premises in the county of Notts, and adjoin- questions and differences which shall arise between the ing and near to a certain reservoir of the defendants, company and the landowners who shall be affected or and that by the consideration and judgment of the prejudiced by the execution of the works of the comcommissioners above mentioned, and by virtue of the rany. Section 35, under which the plaintiff claims, Act above mentioned, and other Acts, the plaintiff shows how the machinery for estimating and adjusting recovered against the defendants judgment for the sum compensation is to be put into action ; and section 36 of 49921., as a recompense for damage sustained by enacts that the judgment of the commissioners shall be him as such owner as aforesaid, by the making, main final and conclusive to all intents and purposes, and be taining of the said reservoir, and by the leaking, binding on all persons, and shall not be removed by flowing and oozing of water from the said reservoir,

certiorari. and through the banks thereof, into the said lands and

(ERLE, C.J.-What is the difference between a judg. mines of the plaintiff.

ment, and a judgment final and conclusive ? Every Third plea, to the whole declaration. That the said Court, in a matter within its jurisdiction, gives a damage, in the first count mentioned to have been judgment final and conclusive, unless there is an sustained, was not sustained by the making, &c., of appeal.] the reservoir, or by the flowing, &c., of the water of the

The object of the Legislature seems to be to avoid said reservoir, within the meaning of the said statute, having more than one appeal to law, by using the very whereby the said commissioners had not jurisdiction, strongest words—words, too, which are not found in under the said Act, to assess the said damage.

the Lands' Clauses Act. Fourth plea to the whole declaration. – That the said

Mellish, Q.C. (H. Lloyd with him). damages were caused by the flowing, &c., of the said

The commissioners and the jury cannot decide water of the said reservoir through certain beds and strata of stone and minerals which formed the natural absolutely what facts give them jurisdiction ; that is a sides and bottom of the said reservoir, and which were the defects of nature.

pure question of law. The company are not liable for not part of the artificial banks of the same, and that

(WILLIAMS, J.-Does the fourth plea say that the the same were not caused in any other manner except flooding of the mine would have occurred if the reseras aforesaid, by the making, &c., of the reservoir, or voir had not been made ?] by reason of the execution by the said company, or the defendants of the powers contained in the said Act; Field, in reply. and the defendants further say, that it was not proved Regina v. The North-Western Railway Company, at the holding of the said inquisition, or found by the 3 El. & Bl. 443; jury, that the said flowing, &c., of the water arose by Newbold v. The Metropolitan Railway Company, the act or default of the defendants, and that the fact 14 C. B. (N.s.) 405; 2 N. R. 168 ; is, that the same arose without their default, and was Chapman v. The Monmouthshire Railway Com. caused by the acts of the plaintiff himself in sinking

pany, 2 H. & N. 267; certain shafts in his said land and coal mines, and so Read v. The Victoria Station Company, 1 H. & C. causing large quantities of water which naturally lay 806 ; 1 N. R. 446 ;

Regina v. The Sheffield and Manchester Railway Then the 4th plea is bad. It alleges in effect that Company, 11 Ad. & E. 194;

the water oozed from the reservoir into the mine by Bradley v. The Local Board of Southampton, 24 reason of the porous nature of the strata on one side of L.J. Q. B. 239 ;

the mine, and not through the artificial banks of the Regina v. The London and Preston Railway Com- reservoir ; that the water was pent up, and rested on pany, 6 Q. B. 759;

a naturally porous bank, and that by the act of the Mold v. Williams, 5 Q. B. 469 ;

plaintiff in sinking a shaft, the water oozed out from Regina v. The Metropolitan Board of Works, 1 the porous nature of the soil into the mine. Now this N. R. 473; 32 L. J. Q. B. 105;

statute has granted a great many rights and powers The New River Company v. Johnson, 29 L. J. beyond, and I may say, contrary to, the law, authoM. C. 93 ;

rising the company to collect all sorts of springs, and were cited.

to heap up, as it were, water in this reservoir ; and it

has provided that all damage done by the water ERLE, C.J.-I am of opinion that there should be flowing, or breaking, or oozing through the banks shall judgment for the defendant on the third plea, and for be paid for. The company must, therefore, take the the plaintiff on the fourth plea.

privilege with the liability. If the leaking is by perThis is an action to recover a sum assessed by a comcolation, whether the banks were formed by nature pensation jury under a Nottingham Canal Act. The or not, the operation of the Act is just the same. declaration sets out the judgment of the commissioners

WILLIAMS, J., concurred. thereby appointed, and the verdict of the jury, which judgment and verdict are that the damage arose from

WILLES, J.-As the authorities stand, it seems to the water of the reservoir. The 35th section of the

me that the judgment of the Court of Exchequer in Act enacts that the judgment and verdict shall be Read v. The Victoria Station Company, is consistent “ final and conclusive to all intents and purposes."

with them and a good illustration of them. CompenThe plea is that the water from the reservoir had not sation under such Acts is in respect of injuria and caused the damage. Now, on the authorities on the damnum, which may be traversed. general law, I am of opinion that this is a good plea.

Judgment for the plaintiff on the 4th plea, By Regina v. The London and North-Western Railway

and for the defendant on the 3rd plea. Company, it was decided that the amount assessed by the jury must be paid if there were any title to come

C. P.


GOODMAN v. HARVEY. pensation, but thąt the title might be traversed in an 1 FEB. 1864. action for the amount of compensation ; and Read v. Interrogatories— Inquiry as to matter suggested The Victoria Station Company is to the same effect.

by the Defendant's Pleas. If the plea shows no injuria or damnum, then the matter must be tried by a jury. I see the force of the

Interrogatories will be allowed, the object of which is arguments of Mr. Field, that if any damage whatever to find out matter that is to repel, or render unavailable, is proved at the trial to have occurred, the plaintiff a defence or claim set up by the defendant. will be entitled to recover the whole sum of 49921.

In this case interrogatories were sought to be admi. already assessed, because the action is on the judg- nistered to the defendant in an action for goods sold ment, and it seems to me that he is so entitled. It and delivered, to which he had pleaded the execution is a very unsatisfactory state of the law, but the line of a composition deed under the Bankruptcy Act, 1861, of decisions in reference to the Lands’ Clauses Act has by the requisite number of creditors. The Judge at established that if there is any cause of action, then Chambers had referred the parties to the Court. there is to be a judgment for the whole amount, and

The interrogatories asked, whether money had not you cannot go into the question as to how much was been given by way of fraudulent preference to certain due to the act of the company, and how much to other of the signing creditors to induce them to give their causes. This plea, therefore is good.

signatures ? Whether certain persons, merely inIs there any distinction between the Lands' Clauses dorsces of certain bills of exchange, and therefore not Act and this Act ? I cannot find any distinction. primarily liable, had been put down as creditors to the [The learned Judge referred to the 25th and 26th full amounts of those bills ? Whether certain other sections of the Act in question.] The 35th section creditors who had not signed had not been put down gives the machinery by which the matters may be as creditors for less than the real amounts due to adjusted. But it seems to me that throughout there them ? is a condition for the attachment of that section, and the condition is, 1st, that there shall be a proprietor ;

W. G. Harrison, for the defendant. 2nd, that he is prejudiced. The jury, it seems to me,

These interrogatories are, first, simply fishing ; decide only the amount of compensation to be paid ;

secondly, highly criminatory, so that I can draw no such distinction as is insisted

igram on Discovery, 80. upon.

Wills was not called upon.

ERLE, C.J.—These interrogatories must be allowed. In an action brought this letter was offered in Bailey v. Griffiths (31 L. J. Ex. 477) is expressly in evidence against the defendant. The Judge refused to the plaintiff's favour, and so is The Attorney-General admit it, and found a verdict in his favour. On this V. Corporation of London (2 Mac. & G. 247).

point the plaintiff appealed. WILLIAMS, J.-The plaintiff would not be allowed Powell, Q.C., for the appellant. interrogatories which relate exclusively to the defen- This letter was admissible. It binds the defendant dant's case, but I do not see that interrogatories should under the 4th section of the Statute of Frauds ; it was not be allowed which go to show that the defence set signed either by him or some one authorised by him. up would not be available.

(ERLE, C.J. - There is a difficulty in showing that WILLES, J.-In the case of Bartlett v. Lewis (12 C. this letter fixes any day for taking possession.] B. (. s.) 249), we said that it is no reason for dis.

I submit the words, “at 401. per annum,” imply a allowing interrogatories that they may be criminatory, yearly tenancy at once, or from the next quarter. He and that we are not to be hampered by the rules of the says “I have let it,” not “I am going to let it.” This Courts of Equity in the administration of interroga- point, however, was not taken at the trial ; it was tories. We may be guided but not limited by their objected to on the ground that Edwards was the agent practice. Now the case of The Attorney-General v.

of the plaintiff ; but I say, that if the defendant asked The Corporation of London has thrown a flood of light Edwards to write, by saying “Do so," when writing upon this subject in the Courts of Equity. There Lord was proposed, this bound him (the defendant) as Cottenham says, “Nothing can be more clear, from much as if he employed his own clerk, authority and universal practice, than that a plaintiff

Durrell v. Evans, 31 L. J. Ex. 337. is entitled to discovery, not only of that which con

Henry Matthews for the respondent. stitutes his own original title, but that he is entitled to a discovery for the purpose of repelling what he

There was no object in putting this letter in except anticipates will be the defence :" and at page 260 he to satisfy the Statute of Frauds, this being an interest

in land. reviews the cases. It is clear, therefore, that the

He was here stopped by the Court. plaintiff is entitled to have these interrogatories answered, which are framed for the purpose of repelling

ERLE, C.J.-I am of opinion that the Judge of the the case set up against him.

County Court was right. Edwards was not the agent KEATING, J., concurred.

of Fuller ; the letter merely contained a recommendaRule absolute to administer interrogatories to

tion to Clarke to do the repairs. It was never intended be settled at Chambers.

to bind Fuller; it was only meant as a proposal. It is also clear that in taking premises from year to year

it is very important to show when the term comC. P. CLARKE, Appellant, v. }

mences, for the purposes of distress, of determining 4 FEB, 1864. FULLER, Respondent.

when six months' notice should be given, &c. This Evidence-Statute of Frauds.

letter was no memorandum of the contract.

Judgment for the respondent. E, the agent of the plaintiff, was applied to by the defendant respecting the plaintiff's house. The defendant

C. P. offered to take it if certain repairs were done. E said

| PARTON, Appellant, v.

4 FEB. 1864. Ś CROFTS, Respondent. he would write a letter to the plaintiff about it. The defendant said, Do so":

Vendor and Purchaser-Statute of Frauds. Held, that this did not make E the defendant's agent so as to render the letter evidence against the defendant In a contract for the sale of goods, the buyer and under the Statute of Frauds (29 Car. 2, c. 3).

seller employed the same broker, who handed the sold This was an appeal from the decision of a County note to the buyer, and the bought note to the seller. In Court Judge, and involved the consideration of a

an action by the seller against the buyer for not accepting . question arising under the Statute of Frauds.

the goods :

The original action was for not performing an agreement to

Held, that the production of the sold note, only, was take and become tenant of a house.

sufficient evidence of the contract to satisfy the Statute of The plaintiff (the appellant) had a house to let, and Frauds (29 Car. 2, c. 3). employed one Edwards as his agent. The defendant This was an appeal from the decision of a County (the respondent) went to Edwards about it, and said he Court Judge, in an action brought by the respondent would take it, if certain repairs were done at once. against the appellant for not accepting certain goods. Edwards said he would write to the plaintiff about it; The plaintiff and defendant in the action employed the defendant said, “Do so." The same afternoon the the same broker; the broker delivered a sold note to plaintiff was written to by Edwards, the letter saying, the defendant (the buyer), and a bought note to the inter alia, “I have let your house."

plaintiff (the seller).

The plaintiff put in the sold note (which he had given decision from the present case. One memorandum the defendant notice to produce) as evidence of the signed by the agent of both parties, is enough. contract. 'The Judge received it, and found a verdict for the plaintiff.

WILLIAMS, J.-I am of the same opinion. It is The only question in the appeal was, whether this quite clear from the evidence, that the broker, acting note was evidence within the Statute of Frauds.

as agent, communicated the terms and the plaintiff

accepted them. If it were not for the Statute of Quain, for the appellant, contended

Frauds, this would have been a sale. Now, this being 1st. That this was not the whole contract, and that the the state of things, the question is, whether the statute bought and sold notes should both have been produced. makes any alteration. I think the broker signed as

2nd. That if he was not bound to put both in, this the agent of both parties, and my brother Keating, note was not signed by the broker as agent for the who is just gone to Chambers, desires me to say that buyer, but as agent for the seller.

he concurs in our judgment. C. Russell, for the respondent, argued, that these Willes, J.-I am of the same opinion. The broker memoranda were evidence of the contract, and that was an agent of both the parties, therefore the memoif evidence in writing of the contract was produced, randum was sufficient. it was sufficient to satisfy the statute.

Judgment for the respondent.

Quain replied.


In my

The following authorities were cited,

THE IPSTONES PARK IRON ORE CoxSievewright v. Archibald, 17 Q. B. 115;

25 Jan. 1864. )


PANY (Limited) v. PATTINSOX. Hawes v. Forster, 1 M. & Rob. 368 ;

Composition Deed for the Benefit of Creditors, Bailey v. Sweeting, 30 L. J. C. P. 150 ; Durrell v. Evans, 30 L. J. Ex. 254.

Plea in Bar-Bankruptcy Act, 1861 (24 & 25

Vict. c. 134), ss. 192 to 198. ERLE, C.J.-I am of opinion that the judgment of the County Court Judge was right.

A composition deed for the benefit of creditors under This was an action by a seller against a buyer for the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134),

s. 192, containing no release of debts, does not operate not accepting. It is. quite clear, from the statement of the case, that the broker was employed both by the

as a release under the statute. buyer and the seller. He communicated with his

To an action on a promissory note, and for goods sold principals as soon as a price was agreed on.

and delivered, the defendant pleaded a deed of composi

tion made under section 192 of the Bankruptcy Act, judgment the broker was the agent of both, and had authority from both.

1861. The deed itself was perfectly good, but it conWe have here to decide on the Statute of Frauds.

tained no release of the debtor :

Held, on demurrer, that the plea was bad ; the ded, The statute says there must be a memorandum in writing of the contract

. I am careful to draw the distinc- although valid, not being pleadable in bar of an action, tion between the contract, and the memorandum of it;

and that the remedy of the debtor is by application to

the Court of Bankruptcy. one may be at one time, and the other at another and later period. That which the plaintiff produced was DECLARATION on a promissory note for 4961. 8s. 6d., a memorandum signed by the broker as agent of both indorsed by the defendant to the plaintiffs, and for parties, to show that iron was sold by one to the other. goods sold and delivered, and on accounts stated. Mr. Quain said it was not usual to hand the bought PLEA.—That after the accruing causes of action, note to the seller, and the sold note to the buyer. I and after the Bankruptcy Act, 1861, coinmenced and think this is an objection that ought not to be made. took effect, an indenture was made in the words and It is said that the sold note has the terms of the pur. figures following, that is to say, “ This deed made the chase. It must be evident to any person of two ideas, 27th day of February, 1862, between George Clarke that there could not be a sale without a purchase. It Pattinson, of Whiston, in the parish of Kingsley, in is impossible that one person could have sold, unless the county of Stafford, iron-stone master, of the one the other had bought. Wherever, as here, there is a part, and Samuel Pattinson, of Whiston aforesaid, contract which would have been good at Common Law, farmer and brick manufacturer, on behalf of and with I am of opinion that the Statute of Frauds is fully the assent of the undersigned creditors of the said satisfied by proof of any memorandum, whether it be a George Clarke Pattinson of the other part, witnesseth bought note or a sold note, containing all the essential that the said G. C. Pattinson hereby conveys all his terms of the contract, and written by an authorised estate and effects to the said S. Pattinson absolutely, person.

to be applied and administered for the benefit of the In Sievewright v. Archibald, the Court doubted, be creditors of the said G. C. Pattinson, in like manner cause the bought and sold notes differed, here only as if the said G. C. Pattinson had been at the date one is produced, which is enough to distinguish that hereof duly adjudged bankrupt, and the creditors of

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