Frazer v. Cuthbertson. 1880 Q.B.D. "If default is made in complying with this section, the owner shall be liable, or if there be more owners than one, each owner shall be liable in proportion to his interest in the ship, to a penalty not exceeding in the whole £100, each time the ship leaves any port in the United Kingdom." The law relating to the position and liabilities of registered owners of ships is tolerably clear. Shipowners to begin with are not necessarily partners. An owner's liability or non-liability for necessaries supplied to a ship depends on the question whether the person who gave the order had his authority to give it. The register no doubt is evidence of ownership of the vessel, and the registered owner, until 98] the contrary is shown, may be presumed to be the employer of those who have the custody of her, and who are engaged in her navigation. But a part owner, whether registered or not, has no power to bind the other owners without their assent. The question in each case is one of fact, whether he has had such authority committed to him, or if this is not in fact the case, whether he has been allowed to hold himself out as armed with such apparent authority. Such being beyond all doubt the general law, what has really to be determined in this case is the question whether, by inadvertently suffering the entry of the 31st of December, 1877, to remain unaltered, the defendant Cuthbertson held out to third parties consulting the register that J. H. Watson was his agent to manage and navigate the ship on his behalf. I will assume for the purpose of my judgment that third persons consulting the register had a right to consider, as between themselves and all owners upon the register, including of course the defendant, that J. H. Watson was a managing owner within the meaning of the section I have referred to. The term managing owner, however, is not defined in the act of Parliament; it is a commercial and not a legal expression. It is perfectly true that a managing owner is a name which frequently and commonly denotes an owner, to whom the other owners have delegated the management of a vessel. But I do not think it follows, as of course, that every single other owner must be taken to have joined in the adventure merely because there is an owner called a managing owner. Language occurs both in some text books, and in some decided cases, which seem to be based on the assumption that a managing owner is an owner employed by and on behalf of all his brother-owners without exception: see Q.B.D. Frazer v. Cuthbertson. 1880 Abbott on Shipping, p. 72, 10th ed.; Barker v. Highley ('); Coulthurst v. Sweet (). But there is no magic in the term managing owner which creates him a plenipotentiary for those owners whose agent he is not in fact. The writers and judges in the passages and cases, to which I allude, have been discussing the extent of the authority of the person appointed, not the question whether every single owner must be taken to have joined in his appointment. In the two cases I have cited, it was assumed, and was no [99 doubt the fact (as it often if not generally must be the fact) that all the owners were partners in the employment of the ship, and assented to the appointment of one managing owner. But an advertisement that A. B. is managing owner of a vessel seems to me to mean no more than that as owner he is intrusted by such of the owners as are interested in the ship's employment to manage her affairs. An entry to a like effect upon the register does nothing further. The 36th section of the act nowhere creates new agents, new functions, new capacities, nor clothes existing agents with enlarged powers. The section is part of the machinery designed to secure adequate protection for lives and property at sea; and provides with that or a similar object that a certain class of agents when they are appointed shall be registered, so that it may be known who in fact is managing the vessel. A managing owner registered under the act is no more and no less than a managing owner before the act. He binds those whose agent he is, he binds nobody besides. Here J. H. Watson was not in fact the agent of the defendant Cuthbertson, it is not suggested that he was-and I do not think that, by leaving unaltered the entry in the register which described J. H. Watson as managing owner, the defendant Cuthbertson held him out as his managing owner, that is to say, as clothed with authority to bind any owners other than those who had in fact intrusted to him the management of the ship. Judgment must therefore be entered for the defendant with costs. Judgment for the defendant. Solicitors for plaintiffs: J. & E. Scott, for Hodge & Westmacott. Solicitors for defendant: Shum, Crossman & Co. (1) 15 C. B. (N.S.), 27; 32 L. J. (C.P.), 270. (2) Law Rep., 1 C. P., 29 ENG. REP. 65 649. 1880 Kingsman v. Kingsman. (C.A.) C.P.D. [6 Queen's Bench Division, 112.] Dec. 1, 1880-Q B.D. 112] *DEBENHAM, Appellant; THE METROPOLITAN BOARD OF WORKS, Respondents. Metropolitan Building Act, 1855 (18 & 19 Vict. c. 122), Part 11, ss. 73, 97—Dangerous Structure-Party Wall-Complaint against one Owner-Expenses incurred by Board of Works-Reasonableness of Charges. A structure within the metropolis having been surveyed by the Board of Works under 18 & 19 Vict. c. 122, ss. 69, 73, an order was made by a magistrate for the owner to take down or otherwise secure the party walls. Upon his default the board themselves executed the works and took out a summons against the owner for the expenses incurred: Held, first, that upon the hearing of such summons the owner could not object to his being made liable for expenses actually incurred, by merely showing that they included items which were in excess of the market price of labor and materials at the date of the execution of the works. Secondly, that he could not require that the other owners of the party walls should be summoned in order that the expenses might be distributed among them. 1221 [6 Queen's Bench Division, 122.] Dec. 7, 1880-(C.A.), C.P.D. [IN THE COURT OF APPEAL.] *KINGSMAN V. KINGSMAN. Husband and Wife-Articles of Settlement-Infant-Married Women suing aloneTrust Property-Order XVI, rule 8-Jus tertii. The plaintiff's husband, who married her when he was an infant of about seventeen, agreed in writing shortly before the marriage, and in consideration of the same, to assign all her property to a trustee for her sole and separate use. At the time of the marriage the plaintiff was possessed of some leasehold property in her own right, and of other leasehold property in trust for her son by a former marriage, and the defendant was her agent appointed by her to receive the rents of the said leasehold property, and as such agent he received the rents both before and after the last marriage. Immediately after the last marriage the plaintiff was deserted by her husband, and she obtained a protection order from a police magistrate, under 20 & 21 Vict. c. 85, s 21, protecting all her earnings and property acquired since the desertion. The action was brought by the plaintiff alone without her husband (who was still an infant) for the rents received by the defendant after the marriage. The husband made no claim to any of the rents, but the defendant having had notice of the marriage, refused to pay them to the plaintiff; and he applied to stay the action until the plaintiff added a next friend or gave security for costs. This application was refused at chambers, and on appeal by a divisional court: Held, that the agreement to assign was void as against the infant husband. Held, also, that the protection order did not apply, but that the effect of the refusal of the court to stay the action on the defendant's application, was to give leave to the plaintiff to sue alone without her husband, in exercise of the authority given to a court or judge by Order xvi, rule 8, and which might be so exercised after action brought, and that therefore the plaintiff was entitled to sue alone and to recover the money received from the property of which she was trustee: (C.A.) C.P.D. Kingsman v. Kingsman. 1880 Held, however, by Lord Selborne, L.C., and Baggallay, L.J., that the agreement to assign being void against her husband she could not recover the money received from the property which belonged to her absolutely before her last marriage: Held, by Brett, L.J., that she could, since the husband had made no claim, and therefore the defendant, who was not defending by his authority, could not set up the husband's right as an answer to the action. THIS was an action by a married woman, suing alone in her own name, for certain rents and other moneys received by the defendant under a power of attorney which she had given him previously to her marriage with her present husband. The plaintiff had married twice, and under the will of her first husband she was entitled absolutely to a leasehold house in Alvey *Street, Walworth, and under the [123 same will certain leasehold houses in Mann Street, Walworth, became vested in her in trust for her son by that first marriage. After having appointed the defendant to receive the rents of these houses, she went to New Zealand, where, on the 25th of December, 1875, she was married to William Walter Kingsman, her present husband, a son of the defendant, and who was then an infant of about the age of seventeen. On the day before this last marriage articles of settlement were executed by the plaintiff in her then name of Langlois, and the said William Walter Kingsman, of which the following is a copy: Auckland, 24th December, 1875. "To Mrs. J. L. Langlois, "In consideration of your consenting to marry, and marrying me, I undertake, promise, and agree, as soon as the marriage shall have been solemnized between us, to convey and assign to such trustee as you may name the whole of the property now belonging to you, or which hereafter may belong to you, upon such trust as shall secure the same property for your sole and separate use and free from my interference and control, and with an absolute power of disposal on your part. "J. L. Langlois. The said William W. Kingsman deserted the plaintiff soon after her said marriage with him, and the plaintiff obtained two orders of protection. The first of these was made in April, 1877, by a resident magistrate in New Zealand, and by it the earnings and property which the plaintiff might thereafter acquire, were ordered to be protected against the said W. W. Kingsman and his creditors, the said order being directed by the magistrate to date from the 25th of De 1880 Kingsman v. Kingsman. (C.A.) C.P.D. cember, 1875. The other order was made on the 24th of August, 1878, by one of the metropolitan magistrates at the Lambeth Police Court, under 20 & 21 Vict. c. 85, and it ordered as follows: "That all earnings and property acquired by" the plaintiff "since the 25th of December, 1875, the time at which the said desertion commenced, or what she may hereafter acquire, and all money and property which she has become possessed of, or to which she has be124] come entitled as executrix, *administratrix, or trustee, since the commencement of the said desertion, or which she may hereafter become possessed of, or to which she may become entitled as executrix, administratrix, or trustee, shall be protected, and such earnings, money, and property, are hereby protected against the husband and all creditors and persons claiming under him, and shall belong to the said wife." The present action was commenced in June, 1879, and at that time the said W. W. Kingsman was still under age, and was not within the jurisdiction, and if living was in Australia or New Zealand; but the plaintiff had not seen or heard from him, he had never ratified the said articles of settlement, nor had he claimed any of the moneys sought to be recovered in this action. The defendant in his statement of defence admitted that prior to the said second marriage he was appointed the plaintiff's agent to receive the rents of the said leasehold property, and that as such agent prior to and after the second marriage he received certain rents and moneys as such agent, but not otherwise, but he denied that he received them after the second marriage on behalf of the plaintiff, and stated that part of them was received by him on behalf of the said W. W. Kingsman, the plaintiff's husband, and that part was received by him on behalf of the said W. W. Kingsman as co-trustee with the plaintiff. He also alleged that the plaintiff being a married woman was unable in law to give him, the defendant, a valid receipt or discharge for the moneys claimed in this action. On the 6th of August, 1879, the defendant took out a master's summons to show cause "why the plaintiff being a married woman suing without her husband and without a next friend, the proceedings herein should not be stayed until the plaintiff adds a next friend or gives security for the defendant's costs." The master before whom this summons came refused to make any order, and on appeal, Pollock, B., at chambers, and afterwards the divisional court approved of such refusal and dismissed the appeal. The cause was tried before Lopes, J., during the last |