ť. GODDARD. of commission;" provision for fourteen running days for load- BRADLEY ing and unloading, and demurrage over and above the laying days, at 31. per day, and that the ship to be addressed to Messrs. P. D. Collins & Co., the plaintiff's agents, free of commission. General averment of conditions precedent. Breach: That the defendants did not, on the arrival of the ship at London, address or cause the ship to be addressed at the place last aforesaid to Collins & Co., the plaintiff's agents, but to other agents, whereby the plaintiff lost profits, &c. Common counts for money paid, and had and received, on which the particulars of demand claimed £8. d. For excess of freight received by the defendant 17 10 0 1 1 0 Pleas: 1. Payment into Court of 17. 8s. 6d. on the first count; and as to the residue, Never indebted. 2. Set-off of demurrage for nine days, 271. Particulars of set-off: The plaintiff in answers to interrogatories stated, that on the 7th of November, 1861, the captain gave notice to him, or some person on his behalf, that the ship was ready at Bordeaux to take in cargo on the 8th. And that the loading commenced on the 8th of November, 1861, and was ready to sail on the 19th, and that eleven days were consumed in loading her. But as to London, he stated, that he could not answer, because the captain had not applied to his agents in London, but the ship having been addressed to other agents. [ 639 ] BRADLEY V. GODDARD. [ *610 ] [ *61 ] The plaintiff was a merchant residing at Bordeaux, the defendant was a ship-owner at Ipswich. The captain received 157. on account of freight at Bordeaux. On the 21st of November, 1861, the defendant directed the captain to report to Goodliffe & Co., in London, and he did so accordingly, on the 4th of December, informing Collins & Co. of the fact on the same *day. The same day Collins & Co. wrote to the defendant remonstrating, and stating that the charterer had instructed them to collect the freight, and that no one else had any right to interfere, as the freight under bills of lading was due to him, and that the captain had signed bills of lading without prejudice to the charterer. This letter was sent to Goodliffe & Co., who tendered to Collins the "reporting" fee of 17. 1s., telling him that this was all the interest they could have in the matter. The unloading commenced on the 9th of December and finished. on the 16th of December. The full freight had been paid by the plaintiff, the charterer, under protest. The questions raised were: 1. Whether the plaintiff had sustained any and what damage by the ship not being reported to the agents named in the charter ? 2. Whether the whole or any part of the demurrage days could be fairly claimed as having been caused by delay in discharging, over which the defendant or his captain had no control, and for which he was not responsible? Collier and J. Brown for the plaintiff. Edward James and Murphy for the defendant. The evidence of the captain taken for the defendant on commission was, that the ship began to take in cargo on the 7th and finished on the 18th; that the ship arrived in London on the 4th of December at about two A. M., and that he reported the arrival of the ship a little before noon of the 4th at the Custom-house; that she was entered in the Victoria Dock; that she finished discharging on the 16th. Cross-examined: he said that on the 4th of December he called upon Collins & Co., the plaintiff's agents, but not to report the ship; and he told them that he had reported her to Goodliffe and Smart, and that he had received a letter from the owner, the defendant, to do so, and he never reported to or had any further communication with Collins & Co., the plaintiff's agents, on that matter. He selected the Victoria Docks, he said, because, by reason of the state of the tide, he could not go into any other dock that day, they being the lowest docks in the river and below Blackwall, and legal docks for discharge" of my cargo.' The ship was discharged into lighters provided by the merchants, the owners of the cargo, which was on eight different bills of lading. He gave no notice to the owners of the cargo or the charterer to expedite delivery, nor did he, he said, know to whom the cargo belonged before he discharged. Some of the owners of the cargo had not men in their lighters to load the goods therein, and part of the crew of the ship were engaged in doing it, and the captain did not take any steps to inform the owners of the goods. He did not send to the owners, he said, because he did not know that it was his business to do so, and he stated that if the ship had not been in demurrage, he should have done just what he had done. He admitted that Collins had said he wished for the control of the ship, and did not deny that he also said the plaintiff would not pay demurrage. He was not, he said, delayed at all by the Custom-house authorities. It appeared that the amount of freight collected was 1147., leaving a surplus due to the plaintiff of 177. 10s., unless demurrage was due to the defendants. Collins was called for the plaintiff, and stated that when a ship was addressed to a broker, the captain handed over ship's papers and bills of lading, and all papers necessary to "report" the vessel; and the broker then reported the ship and collected the freight, sending to the consignees, and seeing that no demurrage accrued; and he would charge a fee for reporting. Brown proposed to ask what the profits would be. ERLE, Ch. J.: As at present advised, I think that profit is not recoverable; but we will take the opinion of the jury. The witness said he should have had 11 per cent., and have got the cargo out in three days; sending notices to the consignees to come and take the goods, and if they did not do so, directing the Dock Company to land. The ship not having been addressed to him, however, he could not do this. If he did not collect freight, he should not charge for commission. The Custom-house officer was called to show that three days would have amply sufficed to discharge the ship. Other evidence was given to show that it was usual for the broker to expedite the discharge, by sending notice to consignees. BRADLEY v. GODDARD. [ 642 ] James, for the defence, admitted that, of course, the defendant could not recover demurrage if he were the cause of the delay, which he denied, alleging that it was Collins's duty to protect the interest of his employer, the charterer. Goodliffe was called for the defence, and evidence was given that the whole time was fairly occupied with unloading. The witnesses for the defence stated that the broker's duty ended with "reporting" the ship. The captain's examination was put in for the defence. ERLE, Ch. J. (to the jury): The sum in dispute is small, but the question is important. A breach of contract is admitted, to the amount paid into Court. Is it more? There is 177. 10s. due to the plaintiff, unless the defendant has an answer; and your verdict must be for that *amount, unless demurrage is payable. And unless the delay was occasioned by the wrongful act of the defendant, demurrage is payable. But if the ship-owner caused the delay by an act or default, in your opinion wrongful, towards the charterer, he cannot claim demurrage. In my judgment, it depends much on what is the duty of the reporting broker as to expediting the discharge of the cargo. I do not know that it is a legal duty, or that, as a matter of law, an action would lie upon it. Many things which come within the knowledge of a jury are important when the inquiry is whether due diligence has been used. The great question for the defendant is, as to the delay caused by the absence of men in the lighters of some of the consignees. The evidence for the defence is, that the broker's duty ended with "reporting" the ship. The evidence for the plaintiff is, that if Collins had been allowed to have the ship, he would have found out the owners of the goods, and that thus delay would have been avoided. The two questions are— 1. On the first point, Is more than the sum paid into Court due? 2. Is there demurrage due? Verdict for the plaintiff for 21. 8s. 6d. on first point; 171. 10s. on the second. PAGET T. BIRKBECK. (3 F. & F. 683-687.) In an action by a farmer against a gentleman, who was member, not master, of a hunt, who had taken the shooting, &c. on the plaintiff's farm, for trespass in hunting and also for laying down rabbits, &c., there being evidence of a licence to lay down some: Held, that the defendant was not liable for damage caused by the horses of other members of the hunt. 2. That he was not liable for damage done by rabbits or birds, unless he had laid down an unreasonable and excessive number. 3. That a deposition made on his behalf in a suit in Chancery between himself and the plaintiff as to the same subjectmatter, was not admissible against him. Sed quære. DECLARATION, that the defendant by himself, his agents and servants, broke and entered the lands and farm of the plaintiff, and with horses and dogs trampled, trod down, damaged, and destroyed the grass, herbage, and crops, and the hedges and fences, and turned and let loose and placed upon the lands divers foxes, hares, rabbits, pheasants, and other animals, to the great damage of the plaintiff. Pleas: 1. Not guilty. 2. Justification under an agreement for the shooting, &c. up to the 1st of March, 1862. 3. As to trespass after that date, an equitable plea justifying under the lease granted in accordance with the decree in equity from and dated on that day. 4. As to damage up to that date, that the alleged damage was done by him as a member of the Surrey and Burstow Hunts, and that on their behalf a sum of 81. had been paid to and received by the plaintiff in satisfaction of the alleged injuries. Issue and new assignment: that the action was brought for other injuries than those covered by the pleas of justification, and which excess also, on the other hand, was denied. Shee, Serjt., and Patchett, for the plaintiff. Borill, Hawkins and Sir George Honyman, for the defendant. The plaintiff was tenant of a farm (it did not appear for *what term or interest). In March, 1860, he entered into the following agreement, on which the plea of justification was based, the interest in which was ultimately assigned to the defendant: "Articles of agreement made and entered into on the 6th of March, 1860, between John Paget, of South Park Farm, in the parish of Bletchingly, in the county of Surrey, yeoman, of the one part, and Charles Arkcoll, of Maidstone, Esq., of the other part. In consideration of the sum of 50%., the said J. Paget doth grant and demise to the said Charles Arkcoll, and his 1863. [ 683 ] [ *684 ] |