.

The bill of lading was a printed document with blanks and the words printed in italics were filled in by the master.

Messrs Dixon & Harrison, the shipbrokers in Glasgow for the "Archdruid," on 26th December wrote to William Johnstone, the onerous indorsee of the bill of lading, in the following terms 'As advised, s.s. 'Archdruid' is now lying at foot of M'Alpine Street, where she will be ready

to

66

commence discharging at 6 a.m. tomorrow morning, and lay-days will commence then.'

Discharging commenced at 7 a.m. on the 27th December and was finished at 2 a.m. on Tuesday 6th January 1891, overtime being worked from 6 p.m. on the 5th to 2 a.m. on the 6th January 1891. Sundays were excluded by the charter-party, and Thursday 1st January was held as a holiday by mutual consent.

On 8th January 1891 Dixon & Harrison presented an account to William Johnstone for £72, 9s. for two days and eight hours' demurrage from 6 p.m. on Saturday 3rd January to 2 a.m. on Tuesday 6th January, and on refusal of payment the pursuers raised this action. William Allan and others, the owners of the "Archdruid" raised an action in the Sheriff Court of Lanarkshire at Glasgow against William Johnstone, concluding for payment of £93, 3s. for three days' demurrage.

They averred that eleven lay-days had been allowed by the charter-party for loading and unloading the ship, and that six of these had been occupied in loading at Kustendjie.

William Johnstone, the defender, averred that by the bill of lading he was entitled to five and a-half days for discharging the cargo, and that the additional detention in discharging was caused by the defective condition of the steamer's winches, which had frequently broken down, and to the irregular discharge given by the ship's stevedores. He, however, without prejudice to his pleas, tendered £50 in full settlement of the pursuers' claims.

On 26th March the Sheriff-Substitute (GUTHRIE) allowed a proof, from which it appeared that the master had inserted five and a-half days in the bill of lading as the result of a compromise between him and the merchant who shipped the cargo, the master holding that six days had been occupied in loading and the merchant only five. It further appeared that the steam winches at the three hatches for discharging the vessel were old but in fair condition, that there had been some slight stoppages of the winch at No. 2 hatch, and that the winch at No. 3 hatch had broken down on Tuesday 30th December from 3:30 p.m. for the remainder of the day, and again on the 31st from 8:30 to 10:40 a.m., and

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13

from 1 p.m. for the remainder of that day. It also appeared that the regular hours for work in winter were 7 a.m. to 5 p.m., and that there had been some irregularity of work owing to the New Year holidays. On the 14th July 1891 the Sheriff-Substitute (GUTHRIE) pronounced the following interlocutor Finds, for the reasons stated in the note, that the pursuers' steamship the Archdruid' finished discharging at Glasgow on Tuesday, January 5th, and that allowance being made for detention, due to the defective working of the ship's winches, the vessel is entitled to one day on demurrage over and above the lay-days allowed by the charter-party: Therefore decerns against the defenders for the sum of £31, 1s., with interest thereon as sued for: In respect that the defenders before action tendered the sum of £50 in full of the pursuers' claim, Finds the pursuers liable in expenses, &c.

"Note. The first question argued is whether the master of the Archdruid' had authority as such to fix the number of laydays occupied in loading at Kustendjie at five and a-half, thus leaving five and ahalf lay-days for discharging the cargo under the charter-party. It is said that part-days do not count in the calculation of lay-days under such a charter-party, and that in breaking up a day into halves, the master was innovating on the contract made by his owners in the charter-party. I cannot help thinking this rather a captious contention. I do not think that it is a material alteration of the contract if it be an alteration at all. It is rather carrying out the contract in a reasonable way. There seems to have been some controversy at Kustendjie with the shippers of the cargo, and that controversy was probably settled by the master in a reasonable way for the benefit of his owners. In any view, the owners object to the arrangement only when they come into Court, and not when it is first brought to their knowledge.

"If the consignees are entitled to five and a-half lay-days, then the ship having been ready to discharge on Saturday morning December 27th, and Sunday, under the charter-party, and January 1st by consent, being discounted, demurrage would properly begin to become due on Saturday January 3rd at noon. But it is conceded that a certain deduction ought to be made for stoppages in discharging at two of the holds in consequence of the winches breaking down. The pursuers allow, I think, six hours for this. I am of opinion that the winch at hatch No. 3 was defective, and that a larger allowance ought to be made for delay, due to the ship's want of winch power. This allowance may fairly be stated at a day and a-half, taking us on to Monday, and in this way, as the ship did not finish her discharge till Tuesday the 5th, one day's demurrage, taking into account the defender's hand-winch and overtime, appears to me to be due at the lowest computation. I therefore decern for one day's demurrage, and as the defenders tendered a larger sum than the pursuers recover, the

Ors. v. Johnstone

13, 1892

defender is entitled to expenses.

There is much recrimination as to the manner in which the men employed by the ship, and the consignees respectively, did their work. I think the real evidence is at least as favourable to the defender as to the pursuer; but, perhaps, considering the season of the year and all the circumstances, it may be held, without much risk of injustice, that the pot and the kettle were, as they both maintain, just about equally black. I, at least, am not prepared to give either a preference."

The pursuers appealed, and argued-The charter-party stipulated for days not hours, and therefore in reckoning lay-days halfdays counted as whole days-Hough and Others v. Athya & Son, May 27, 1879, 6 R. 961; Commercial Steamship Company v. Boulton, June 17, 1875, L.R., 10 Q.B. 346. Six days therefore fell to be reckoned as the time occupied in loading the ship, and only five remained for unloading. The master could not innovate on the owners' contract by allowing five and a-halfHolman v. Peruvian Nitrate Company, February 8, 1878, 5 R. 657. His statement was therefore either false in fact or a wrong inference in law. Further, the bill of lading specially incorporated the charter-party, and the defender as indorsee must be held cognisant of the terms of it. The lay-days for unloading therefore began at 12 p.m. on the 26th December and expired at 12 p.m. on 2nd January. Three days demurrage was accordingly due. Delay had no doubt been caused by the breakdown of the winch at No. 3 hatch. That was not however due to faulty construction, and the defender must bear the loss, as he had undertaken an absolute obligation and was bound to fulfil it unless the owners were personally in fault-Postlethwayte v. Freeland, May 7, 1880, L. R., 5 App. Cas. (H.L.) 599; Carver on Carriage at Sea, 611; Badgett & Company v. Binnington & Company, 1891, I Q.B. 35. Even if, however, some allowance must be made for the delay, six hours was ample, and these fell to be deducted from the period of demurrage. In any view, if the half day was to be allowed, and six hours were to be added to the lay-days, that would only extend the time to 6 p.m. on the 3rd January, and demurrage for a period of two days and eight hours down to 2 a.m. on the sixth was accordingly due.

Argued for the defender--The defender was here an onerous endorsee, and the bill of lading was his contract with the owners, and must be taken as it stoodGardener v. Trechmann, December 16, 1884, L.R., 15 Q.B. 154; Mercantile Exchange Bank v. Gladstone and Others, June 1, 1868, L.R., 3 Exch. 233; Scrutton on Charter-Parties, &c., 42; Mitchell v. Scaife, 4 Camp. 298. Whatever effect it might have with the charterers, it could not now be gone behind, as when endorsed over it was no longer a receipt but a contractLeduc v. Ward, February 11, 1888, L. R., 20 Q.B. 475. Further, the bill of lading was in the form specially referred to in the

charter-party; and by giving the master a printed form with a blank clause in it, the owners had given him authority to fill it up-Holman v. Peruvian Nitrate Company, supra. There were therefore five and a-half days for discharging the ship. These must be reckoned as periods_of twenty-four hours, and from 7 a.m. on December 27th when work began. The owner's letter of December 26th was conclusive against them on this point. The lay-days consequently expired at 7 p.m. on the 3rd January. To this fell to be added the period allowed for the breakdowns, which extended the time into Sunday 4th January, Sunday being excepted from the lay-days as a working day, demurrage accordingly began on Monday the 5th. There was therefore only one day's demurrage due, and the defender had tendered a sum in excess of that.

At advising

LORD PRESIDENT--The first question for us to decide in this case is as to the number of days which the consignees were entitled to for unloading the vessel-whether they were entitled to five days or five and a-half days. Now, in my opinion that depends on the terms of the bill of lading which was granted by the master. The bill of lading sets out that "Five and a-half laying-days remain for discharging the whole cargo.' It is clear that this clause is not a mere statement of fact that five and a-half days had been consumed in loading the vessel. On the contrary, it appears from Mr Dickson's argument that there being in the charter-party a provision that eleven running-days should be allowed for loading and unloading, the bill of lading, which was granted in the form authorised by the charter-party, apprised the consignee how much time he had left for discharging the cargo, and there is no doubt that the captain made provision in the bill of lading that there should be five and a-half days for that purpose.

Now, that the captain had authority for doing so is demonstrated by the fact that the charter-party provided for what was called 1885 bills of lading being used. An 1885 bill of lading was undoubtedly a bill of lading in this form, and it leaves a blank for the captain to fill in the number of laying-days that remain. Therefore the captain was directly empowered by his principals to do the very thing which in point of fact he has done. I am therefore of opinion that this contract was entered into by a lawfully constituted agent, binding on his owners, and that five and a-half days consequently remained for discharging the vessel.

The next question for our consideration is the mode in which those days are to be computed. If they are to be counted from 6 a.m. on the morning of the 27th, then the owners are in this position-that the time is extended on to Sunday the 4th, and the action in consequence fails. Now, on this point I do not understand how they can get over the letter of 26th December 1890, which Messrs Dixon & Harrison, their

Ors. v. Johnstone

13, 1892

ported into the charter-party, subject to the condition that the master is to have power to fix the time allowed to the merchant for unloading. The master thus authorised fills up the clause in the bill of lading by stating that five and a-half days remain for unloading, and takes the cargo on the condition so expressed. It is therefore out of the question for the shipowners to say they are not bound by the inaster's act, or that the statements amount to anything else than a stipulation as between the onerous indorsee and the owners that the former is to have five and a-half days for unloading before demurrage begins to run. Next as to the period when the laying-days began. That is fixed by the information given by the shipowners' agents that the ship would be ready to discharge at 6 a.m. on the 27th. That is conclusive against them. On the question of fact I agree with your Lordships, and have nothing to add.

The Court dismissed the appeal.

Counsel for Pursuers and AppellantsJameson-Younger. Agents--J. & J. Ross,

W.S.

Counsel for Defender and RespondentDickson-Ure. Agents-Webster, Will, & Ritchie, S.S.C.

Friday, January 15.

SECOND DIVISION.
[Sheriff of Dumfries and
Galloway.

M‘QUILLAN v. SMITH.

Husband and Wife-Affiliation and Aliment of Illegitimate Child-Wife Suing without Husband's Concurrence-Title to Sue.

Held that a married woman whose husband was abroad and had not been heard of for six years, had a title to sue an action of affiliation and aliment for a child borne by her, without the concurrence of her husband, and without having a curator ad litem appointed.

Mrs Susan Armstrong or M'Quillan, residing in Lennox Close, Portpatrick, brought an action of affiliation in the Sheriff Court at Stranraer against James Smith, fisherman, Blair Street, Portpatrick, for aliment for an illegitimate child born on 19th December 1890, of which she averred that the defender was the father.

It was stated in the condescendence that her husband "Joseph M'Quillan, a seaman, sailed for Australia seven years ago, and has not since been heard of by the pursuer, and she has no knowledge as to whether he is dead or alive."

The defender pleaded-"(1) The pursuer being a married woman is not entitled to sue this action without the consent and concurrence of her husband. (2) The child in question being the offspring of a married

woman, her husband is presumably the father thereof; therefore it is incompetent to prove the paternity against the defender without making the husband a party to the action."

Upon 28th May 1891 the Sheriff-Substitute (WATSON), before answer, allowed the pursuer a proof of her averments.

"Note. -The pursuer of this action of filiation is a married woman. She avers that her husband sailed for Australia about seven years ago, and has not since been seen or heard of by her. The defender does not admit the truth of that averment, but pleads that the pursuer has no title to sue unless she either brings positive proof of the death of her husband or obtains his consent to and concurrence in her action. The defender's contention was founded mainly on certain dicta of Lord JusticeClerk Moncreiff and Lord Young in the case of Wilkinson, November 9, 1880, 8 R. 72. These dicta, however, were uttered prior to the passing of the Married Women's Property Act 1881, and even under the former law they seem hardly reconcilable with some earlier decisions of the Court, such as Jobson, May 31, 1832, 10 S. 594. In that case a wife whose husband had been abroad for several years was found entitled to sue for aliment the alleged father of a child begot before but born after the marriage. It is true that in that case a curator ad litem was appointed to the wife, and the husband was also called in the summons for his interest. But it appears to the Sheriff-Substitute that the reasons which made these precautions necessary under the former law do not now exist, for the husband has now no right of administration in reference to such a claim as the present. The SheriffSubstitute is therefore of opinion that if the pursuer's averment in regard to her husband is true, she has a good title to sue. He has accordingly allowed a proof before answer.'

The defender appealed to the Sheriff (VARY CAMPBELL), who upon 19th June 1891 refused the appeal.

"Note.-Assuming that the pursuer can prove that her husband has been absent from her for seven years without contributing to her support, and that it is now uncertain whether he is living or dead; further, that if he is alive, she does not know where he is to be found-I cannot refuse to sustain her title to sue. If the husband is dead, there can be no question of her right. If he turns out to be alive, nevertheless I think there is authority for sustaining an action of this nature by a married woman. The class of cases to which I refer are those relating to the actions and obligations competent to and against a married woman thrown upon her own resources either by wilful desertion of her husband or by his permanent separation from her without keeping up a home for her or making any provision for her support.

"A woman in such a situation must have some legal capacity to act and contract, to sue her debtors and be sued, else she must starve. Such capacity has accordingly

been recognised in the well-known cases of Chirnside, M. 6802; Orme, 12 Sh. 149; Ritchie, 7 D. 819. The pursuer, in her present position as alleged, might, if she had been slandered, have sued for damages without her husband's concurrence, and the same would hold if she had a claim of reparation for personal injuries sustained by her in a railway collision.

"This is not an action of status either to dissolve the marriage for adultery or to declare the child to be or not to be the husband's lawful child. To such actions the husband is a necessary party. No doubt the defender will have the benefit for his defence of the presumption arising from the pursuer's marriage, but this presumption will be overcome if the pursuer can prove her averments-Montgomery, 8 R. 403; Steedman, 14 R. 1066; Stephen's Digest of the Law of Evidence as to Affiliation Orders, art. 98. This is an action which might have been brought by anyone who was maintaining the child in order to enforce payment by the defender of his share-Thomson v. Westwood, 4 D. 833. Brought as it is by the mother, it has no further effect than this in her favour, and it may serve, probably enough, by enforcing the defender's contribution to prevent her from having to apply to the parish. Questions of status may have to be dealt with incidentally in this, as in many similar cases, in order to reach the practical judgment sought from the Sheriff-M'Donald, February 18, 1891, 28 S. L.R. 404, but the husband and child will not be barred afterwards from raising any action as to status by this woman seeking decree against the present defender, or by her registering the child as a bastard-Tennant, 17 R. 1205. Justice to the woman, to whom the burden of this child may make all the difference between parochial chargeability and selfmaintenance, and the regular administration of the Poor Law Act (sec. 80), seem to render it right and proper, according to the authorities referred to by the Sheriff-Substitute and by me, not to sustain the defender's first and second pleas to the effect of These pleas cannot, excluding the action. on the other hand, be repelled until she proves her deserted position as alleged by her. The authorities of the common law above mentioned have been extended by the letter and spirit of recent legislation in 1861, 1874, 1877, and 1881 as to married women. If the child is being supported, as I suppose is the case, out of the pursuer's wages and earnings, then such wages are by the Act of 1877 her own, exclusive of both jus mariti and right of administration, and this is truly an action relative to and for the protection of such separate estate from a burden which the defender as alleged ought to share. An action relative to such estate a married woman might raise at common law without concurrence of her husband. It does not appear that she when of full age needs a curator ad litem in an action such as this. At all events, there are authorities-Fraser on Husband and Wife, pp. 569, 570, 572, 1516— dealing with actions by married women

whose husbands are abroad or in reference to their separate estate, which do not seem to render it pars judicis to add to the expense of this action by requiring the appointment of a curator to the action. If either party moves for the appointment of such a curator (and it may be advisable for the pursuer to save any technical question by so doing), the Sheriff-Substitute will probably grant the motion and allow the curator to see the process in common form before proceeding with the proof."

After a proof the Sheriff-Substitute found in fact that the pursuer's husband had left this country and sailed for Australia in 1883, that she had not heard of him since 1885, and that she had made reasonable endeavours to trace him, but without effect; and found in law that in these circumstances pursuer was entitled to sue this action alone, and repelled the first and second pleas-in-law stated by the defender. Upon the merits the Sheriff-Substitute found that the pursuer had established her case, and gave her decree accordingly.

The defender appealed to the Second Division of the Court of Session, and argued The defender's preliminary pleas should be sustained. In finding that the pursuer had a title to sue alone the Sheriffs had disregarded the case of Wilkinson v. Bain, November 9, 1880, 8 R. 72. In any case a curator ad litem should have been appointed to the pursuer-Cullen, November 19, 1830, 9 S. 31; Jobson, May 31, 1832, 10 S. 596.

Argued for the respondent-The judg ment should be affirmed. The case had been correctly set forth by the Sheriffs. At advising-

LORD JUSTICE-CLERK-The only real and practical question in this case is, whether the pursuer is in a position to sue this action in her own right, and without the consent of her husband. Upon the merits of the case there is no doubt that the judgment of the Sheriff-Substitute is right.

In the first place, what are the circumstances of the case. The pursuer was married thirteen years ago, and her husband, who was a sailor, left her on a voyage to Australia in 1883, and since then she has never seen him. The last she heard about him was in 1885, when she got a letter from someone saying he had seen the pursuer's husband in Australia, but since then she has heard nothing about him. has been found, no doubt very properly, that the pursuer has made reasonable endeavours to trace him.

It

The question then is, whether if the pursuer in such circumstances should' prove unfaithful to her marriage vow and have an illegitimate child, she can insist as in her own right in an action calling upon the alleged father to pay his share of the child's support? It must be kept in view that we are not dealing with a question of status at all, the only question that can arise is, whether the pursuer by her evidence can overcome the presumption which exists in the case of a married woman if she gives