carry over and above her cabin tackle, provisions, and furniture, and, being so loaded, should therewith proceed to Cowes for orders (unless ordered direct on signing bills of lading) to discharge at a safe port in the United Kingdom, or on the continent between Cronstadt and Havre, both inclusive, or in the Mediterranean or Bosphorus; and, being arrived at the port as ordered, should there deliver the said cargo to the defendant or his agents according to bills of lading: And the defendant thereby agreed to pay *freight for the round *796] voyage as follows, viz., if ordered from Cowes for a port in the United Kingdom, or a port on the continent, not in the Baltic, 80s. (if sent direct to the United Kingdom, 2s. 6d. per ton less); for a port in the Baltic, 85s.; for a port in the Mediterranean or Bosphorus, 958.,-for sugar and molasses per ton of 2240 lbs. net, Spanish weight, delivered: the same rates to be paid for rum per liquid ton, and per load for timber: other goods, if any should be shipped, to pay in proportion to the foregoing rates, except what might be shipped for broken stowage, which should pay as customary: the whole in full of all pilotages, port-charges, &c., any exemption from which through the cargo to be for charterer's benefit: If the vessel should be sent direct from the loading port to the Mediterranean (calling at Gibraltar for orders, if required), the freight to be the minimum rate above stated: If timber should be shipped, the quantity of sabicu not to exceed sixty loads, to be taken through the vessel's hatchway: Payment to become due and be made on arrival at the final port of discharge and true delivery of the cargo, by good and approved bills on London at three months' date, or cash equal thereto: 250l. to be advanced on sailing from Liverpool, less insurance, by charterer's acceptance at four months' date: Cash for ship's disbursements in Cuba to be supplied in Cuba to extent of 2501., if required, on usual terms, and at par of exchange: All advances to be deducted on final settlement: Thirty-five working days to be allowed for loading the cargo there, to be computed from the time of the vessel being and remaining in a proper loading place ready to load, and to cease on being despatched, and waiting orders at port of call: Notice of readiness and arrival to be given in all cases by the owner or master in writing: Time occupied in changing ports not to count as laying *797] days: And the *plaintiff and the defendant thereby further agreed that the defendant might detain the vessel any further period beyond the said laying days, paying demurrage at the rate of 41. sterling per working day (certain perils excepted); the outward cargo to be laden in turn, and discharged at the rate of twenty-five tons per working day after vessel should be in a usual berth as ordered by the defendant's agents: Averment, that the plaintiff had performed the said charter-party in all things on his part, and that before the action was brought all things had happened, all times had elapsed, and all conditions had been fulfilled necessary to entitle the plaintiff to a performance by the defendant of the said charter-party, and to sue him for the breaches thereof thereinafter mentioned: Yet that the defendant broke the said charter-party, in this, that he did not nor would pay the freight made payable by the said charterparty, as provided by the said charter-party, but therein wholly made default, and the same remained in arrear and unpaid, contrary

to and in violation of the terms of the said charter-party: and the defendant further broke the said charter-party, in this, that he did not nor would load at Havana and [or] at any other loading place in the island a full and complete cargo of sugar and [or] other lawful produce, but loaded a short and incomplete cargo, by reason whereof the plaintiff lost the freight he would otherwise have earned if a full and complete cargo had been loaded pursuant to the terms of the said charter-party and the defendant further broke the said charterparty, in this, that he did not nor would ship at Havana and [or] any other loading place in the island a reasonable and proper cargo, or one within the true intent and meaning of the said charter-party, but, on the contrary, loaded a cargo of timber of unreasonable and improper dimensions and sizes for the said ship, without *providing broken stowage for the same, although broken stowage was [*798 necessary for the due and proper shipment of such cargo; by reason whereof the said ship was unable to carry so large a cargo as she would otherwise have done, as according to the terms and intent of the said charter-party she ought to have done; and the plaintiff was thereby prevented from earning so large an amount of freight as he would otherwise have done.

There were also counts for freight, demurrage, hire of a ship, work and labour, interest, and money found due on accounts stated.

The defendant pleaded,-first, to the second and third breaches assigned in the first count, that he did not break the charter-party as therein alleged, secondly, to the declaration other than the first count, except as to 1457. parcel of the money claimed, never indebted, thirdly, as to so much of the declaration as the second plea was pleaded to, that before action he satisfied and discharged the plaintiff's claim by payment,-fourthly, as to so much of the declaration as the second plea was pleaded to, a set-off,-fifthly, as to 1457, parcel of the money claimed, and as to the breach of contract in the first count of the declaration firstly assigned, identity of causes of action, and payment of that sum into court.

The plaintiff joined issue on the first, second, third, and fourth pleas, and, as to the fifth plea, replied that the sum of 1457. was not enough to satisfy the plaintiff's claim in respect of the matters to which the said fifth plea was pleaded. Issue thereon.

The cause was tried before Erle, C. J., at the sittings in London after last Michaelmas Term. The facts which appeared in evidence were as follows:-The Ina sailed from Liverpool on the 12th of August, 1861, and arrived at Havana on the 10th of October, and *discharged her cargo, and was reported ready to receive her [*799 return cargo on the 31st. The shipment of the return cargo was completed by the 1st of January, 1862. (a) The cargo so put on board, which was in one sense a full and complete cargo, consisted of logs of mahogany and some cedar. The captain repeatedly applied for but could not obtain wood for broken stowage, and in consequence he was compelled to keep on board thirty tons of ballast, to trim the ship. In respect of these thirty tons, the plaintiff on the ship's arrival in London claimed freight at the accustomed rate, viz. half the stipulated rate, amounting to 557. 58.

(a) The question of delay, and amount of demurrage, was referred

On the part of the defendant, witnesses were called who stated that broken stowage was always matter of express stipulation. On the other hand, witnesses were called who stated that a full and complete cargo of mahogany could not be shipped without broken stowage: none of these, however, appeared ever to have shipped timber from Havana; nor was there any evidence that broken stowage could be obtained there.

It was insisted for the plaintiff, that under the terms of this charter-party, if broken stowage was necessary to put on board "a full and complete cargo," the charterer was bound to provide it.

For the defendant, it was submitted that the construction of the document was for the judge, and that, in the absence of express stipulation, the charterer was not bound to provide broken stowage.

His Lordship left it to the jury to say whether or not the defendant had shipped a full and complete cargo, within the charter-party. They found that he had not, and accordingly returned a verdict for the plaintiff for the amount claimed.

*Karslake, Q. C. (with whom was F. M. White), now moved *800] to enter a verdict for the defendant, or for a new trial, on the grounds of misdirection and that the verdict was against the weight of evidence. The plaintiff's claim in respect of broken stow. age is founded upon these words of the charter-party, "other goods, if any should be shipped, to pay in proportion to the foregoing rates, except what should be shipped for broken stowage, which should pay as customary." This, it is submitted, does not amount to a contract to ship broken stowage: and there was no evidence to show that under such a charter-party as this the charterer binds himself to provide broken stowage. [ERLE, C. J.-I thought it was rather a question for the jury than for me.

There was evidence that it was usual to put on board with such a cargo as this a certain quantity of broken stowage.] There was also evidence that this was always matter of express stipulation. The charterer contracts to put on board a full and complete cargo of lawful produce, amongst other things timber and he has complied with his contract by putting on board as much timber as the ship could contain. In Moorsom v. Page, 4 Campb 103, by a charter-party the freighter covenanted to provide for the ship a full and complete cargo consisting of copper, tallow, and hides, or other goods, on which separate rates of freight were to be paid and it was held, that, having supplied the vessel with as large a quantity of tallow and hides as the master chose to take on board, the charterer was not bound to provide any copper, although for the want of it the ship was obliged to keep in her ballast, and did not make so advantageous a freight as she otherwise would have done. "The parties," said Lord Ellenborough, "very likely intended that copper should necessarily form a part of the cargo; but they have not said so." So, in *Irving v. Clegg, 4 M. & Scott 572 (E. C. L *801] R. vol. 30), 1 N. C. 53, the defendants hired a ship for a voy. age to the East Indies and back, the freight for the homeward cargo to be 47. 15s. per ton of 20 cwt. for sugar, coffee, and rice, and for pepper at 18 cwt. to the ton; the fore cabin to be filled with light goods, and 100 tons of rice or sugar to be shipped previous to any

other part of the loading, to ballast the vessel, and keep her in proper trim for the voyage. The defendants, in pursuance of the charterparty, shipped 100 tons of rice, and completed the cargo with light goods, in consequence of which the master was compelled to ship a large quantity of stone ballast, to enable the ship to sail safely; and it was held, that the defendants were at liberty, after shipping the 100 tons of rice, to complete the cargo with such goods as they thought fit, and were not bound to pay freight for the tonnage occupied by the additional ballast. These cases, it is submitted, are precisely in point, if the construction of the charter-party is a question for the court.

ERLE, C. J.-If this was a question for the jury, it was submitted to them, and I cannot say that I was dissatisfied with the verdict. If it be a question for the court, I think the plaintiff's claim is well founded. By the terms of the charter-party, the charterer undertakes to load at Havana "a full and complete cargo of sugar and other lawful produce." Certain goods are enumerated, including timber, and certain rates of freight are mentioned; and the charter-party goes on, "other goods, if any should be shipped, to pay in proportion to the foregoing rates, except what might be shipped for broken stowage, which should pay as customary," that is, half freight. The charter-party is for "a full and complete cargo." The charterer has the option to put on board any merchandise he *pleases: but he is bound to [*802 fill the ship. If he chooses to put a cargo on board which will leave a portion of the ship which cannot be filled without broken stowage, he is bound to put on board broken stowage. The shipowner is under an obligation to receive broken stowage at half the stipulated rate of freight and I think there is a correlative contract on the part of the charterer to put on board so much broken stowage as will complete the full loading of the ship.

WILLIAMS, J.-I am of the same opinion, and for the same reasons. WILLES, J.—I am of the same opinion. The refusal of this rule will not conflict with the ruling of Lord Ellenborough in the case of Moorsom v. Page. There, the vessel was filled with tallow, plus the quantity of ballast to make the vessel seaworthy with a full cargo of tallow. The contention on the part of the shipowner was, that the charterer ought to have supplied copper, so that some of the ballast might have been taken out, and thus a larger amount of freight would have been earned. But Lord Ellenborough ruled, that, as the charterer had the option of shipping a full cargo consisting of copper, tallow, and hides, or other goods, and had put on board a full cargo of tallow, the mere fact, that, if he had loaded her in some other way, the owner would have earned a greater freight, was not to be taken into consideration. That is not applicable here. The thirty tons of ballast, plus the timber, did not fill the ship, but left a space which might and ought to have been filled up with broken stowage. That which the shipowner was bound to receive, the charterer was bound to load. The obligations on either side are correlative. Rule refused.

KEATING, J., concurred.

*803]

*HEATH v. BREWER. Jan. 13.

To entitle a defendant to notice of action under a statute, he must honestly intend to put the law in motion, and really believe in the existence of a state of facts which if they existed would have justified him in doing as he did.

The 24th section of the Hackney Carriage Act, 6 & 7 Vict. c. 86, empowers the proprietor of a cab, if he has any complaint against his driver, to summon him before a magistrate, who may endorse on his license the nature of the offence; and s. 47 provides that a notice of action shall be given where a party is sued for anything done under the authority of the act:-Held, that a cab proprietor who, without summoning the driver before a magistrate, defaced his license by writing on it that he had been dismissed for damaging his cab and bringing home no money, was not entitled to a notice of action, inasmuch as he could not have honestly intended to put the law in motion, or really believe that he was acting under the authority of the statute.

THIS was an action brought by a licensed driver against the proprietor of a cab, for defacing his license by writing defamatory matter upon it, whereby he was prevented from obtaining employment as a driver.

At the trial before Byles, J., at the sittings at Westminster after the last term, it appeared that the plaintiff had been in the service of the defendant as driver, and in the course of his service had accidentally or negligently damaged the vehicle intrusted to him; whereupon the defendant wrote on the back of the license,-which by the 21st section of the Hackney Carriage Act, 6 & 7 Vict. c. 86,(a) is required

to be deposited with the employer,-the words complained of, *804] viz. that he had discharged the plaintiff from his employ for damaging his cab and not bringing home money. The defence was, that the defendant had received no notice of action,-a month's notice being required by s. 47 before the commencement of an action "for anything done under the authority of the act."

For the defendant it was insisted that the complaint here was not of a thing done under the authority of the act, and consequently that no notice was required.

(a) The 21st section enacts that "every proprietor of a hackney carriage, &c., who shall permit or employ any licensed person to act as the driver or conductor thereof, shall require to be delivered to him, and shall retain in his possession, the license of such driver or conductor while such driver or conductor shall remain in his service; and, in all cases of complaint, where the proprietor of a hackney carriage, &c., shall be summoned to produce the driver or conductor of such carriage before a justice of the peace, he shall also produce the license of such driver or conductor; and, if any driver or conductor complained of shall be adjudged guilty of the offence alleged against him, the justice of the peace before whom he shall be convicted shall in every case endorse upon the license of such driver or conductor the nature of the offence, and the amount of the penalty inflicted," &c.

And the 24th section enacts, that, "when any licensed driver or conductor shall leave the service of any proprietor, such proprietor shall, upon demand thereof, return to him his license: Provided always, that, if the said proprietor shall have any complaint against the said driver or conductor, it shall be lawful for such proprietor to retain the license for any time not exceeding twenty-four hours after the demand thereof, and within that time to apply to the policecourt of the district in which the said proprietor shall dwell, &c., for a summons against him; and the said proprietor, at the time of applying for the summons, shall deposit the license with the clerk of such police-court," &c.

The section then proceeds to impose a penalty on the proprietor for neglecting or refusing to deliver up the license.

See Rogers r. Macnamara, 14 C. B. 27 (E. C. L. R. vol. 78), where it was held that the employer of a conductor of a metropolitan stage-carriage is not justified in endorsing upon such conductor's license the reason for which he discharges him from his service.