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wit, four days over and above, &c., and the profits, to wit, &c., which they would have made by such use.
Plea 2 to the above count. That, at the time of the making of the said charter-party, it was asserted and represented by plaintiffs to defendant that the said ship was, on the day of making the said charterparty, to wit, on, &c., at Wyburg in the kingdom of Russia; and defendant then entered into and agreed to the said charter-party confiding in that representation and assertion of the plaintiffs; and defendant further says that the said ship was not, at the time of the making of the said charterparty, at Wyburg aforesaid. Verification.
Replication to plea 2. That, at the time of the making of the said charter-party, and at the same time when it was asserted and represented by plaintiffs to defendant as in the said plea mentioned, it was also asserted and represented by plaintiffs to defendant, and it was mentioned in the said charter-party, that the said ship was then bound on a voyage from Wyburg aforesaid to Hull. And the plaintiffs in fact say that, at the time of making the said several representations and assertions, and of the making of the said charter-party, to wit, on the said 14th June, 1847, plaintiffs believed that the said ship was then at Wyburg aforesaid and was then about to sail from Wyburg aforesaid to Hull aforesaid: and that, at the time of the making of the said several assertions and representations, and of the making of the *said charter-party, to
[*637 wit, on the day and year last mentioned, the said ship was on her said voyage from Wyburg aforesaid to Hull aforesaid, the said ship having just before then, to wit, on 10th June, in the year aforesaid, sailed from Wyburg aforesaid on her said voyage to Hull aforesaid; and the said ship in fact then performed the said voyage direct from Wyburg aforesaid to Hull aforesaid. Verification.
Rejoinder.—That the said assertion and representation, that the ship at the time of the making of the said charter-party was at Wyburg as in the said second plea mentioned, was contained and mentioned in the said charter-party, and was part and parcel thereof and of the said contract thereby made. And defendant says that the said ship was not, at the time of the making the said charter-party, at Wyburg aforesaid. Verification.
Demurrer, assigning for causes : That it does not appear in or by the said second plea or the said rejoinder that the said assertion and representation was a warranty or a condition precedent: also that the said rejoinder is a departure from the plea, inasmuch as the rejoinder sets up an assertion and representation contained in the charter-party, and in writing, whereas the assertion and representation in the said second plea is not alleged to have been or to be contained in the charter-party, or to have been or to be in writing, and might and would have been proved by parol or by writing dehors the charter-party; and that, if it was a material and traversable fact that the said assertion and repre
sentation was contained in the charter-party, then that fact ought to have been alleged in the plea. Joinder. *638]
*Unthank, for the plaintiffs.—First, the statement of the plain
tiffs, as described in the plea, was substantially true; or, if it was not, the variation was in favour of the defendant. But at all events it is not, as pleaded, a warranty. Assuming that it was contained in the charterparty, every statement introduced into a charter-party is not a warranty. The distinction between a warranty and a mere representation is pointed out by Lord MANSFIELD in Pawson v. Watson, 2 Cowp. 785. In Ollive v. Booker, 1 Exch. 416,† the statement in a charter-party that the ship was “now at sea, having sailed three weeks ago," was held to be a warranty and to create a condition precedent; but there it was expressly pleaded that time and the probable situation of the vessel were material and essential parts of the contract. In Glaholm v. Hays, 2 Man. & G. 257 (E. C. L. R. vol. 40), there relied upon, TINDAL, C. J., discusses the nature and materiality of such conditions in a charterparty.(a) [WIGHTMAN, J.-What do you say distinguishes a mere representation from a warranty ?] The Court will judge from the whole instrument whether the fulfilment was a material part of the contract, according to the intention of the parties. Freeman v. Taylor, 8 Bing. 124 (E. C. L. R. vol. 21), and Clipsham v. Vertue, 5 Q. B. 265 (E. C. *639]
L. R. vol. 48), also show the *principle on which particular terms
in such a contract as this are held essential or otherwise. Here the words, as stated in the plea, appear as a representation only; and nothing is added to show that they were a material part of the agreement. The rejoinder, if intended to allege more than a representation, is a departure from the plea. And, further, the variation from the contract here is pleaded to a charge, not of repudiating the contract altogether, but of fulfilling it imperfectly; that is, by loading an improper cargo, and by detaining the ship too long. The defendant adınits that he has, in some measure, adopted the charter-party: he has, in fact, treated the stipulation as one of the third class mentioned in note (4) to Pordage v. Cole, 1 Wms. Saund. 320 c, 6th ed., “where a covenant goes only to part of the consideration on both sides." Havelock v. Geddes, 10 East, 555, shows the application of the general law to a case resembling the present.
Willes, contrà.—The supposed benefit to the defendant by the variation from the contract is not clear in point of fact, and is not admitted. The doctrine of Havelock v. Geddes, and of the cases cited in note (1) to Pordage v. Cole, need not be disputed. In cases of that class, it is
(a) Unthank read the following words of the judgment, p. 266: “Whether a particular clause in a charter-party shall be held to be a condition, upon the non-performance of which by the one party, the other is at liberty to abandon the contract, and consider it at an end; or whether it amounts to an agreement only, the breach whereof is to be recompensed by an action for damages, must depend upon the intention of the parties to be collected, in each particular case, from the terms of the agreement itself, and from the subject matter to which it relates."
admitted that the contract was valid at the time of making it. But hero the allegation is, in effect, that the plaintiffs induced the defendant to enter into the contract by a certain representation ; that that was false; that defendant, if he had known it to be false, would not have contracted; and that, consequently, the contract never bound him. The judgment of PARKE, B., in Ollive v. Booker, 1 Exch. 423,7 sanctions this view. *[WIGHTMAN, J.—There the plea expressly averred
[*640 that the facts represented were essential to the contract.] The judgment does not seem to treat that circumstance as material. This case is analogous to Gregg v. Wells, 10 A. & E. 90 (E. C. L. R. vol. 37), and others, in which a party has been held liable for inducing another, by a false suggestion or deceptive conduct, to alter his situation for the
It is laid down, in Adamson v. Jarvis, 4 Bing. 66, 73 (E. C. L. R. vol. 13, 15), that “ he who affirms either what he does not know to be true, (a) or knows to be false, to another's prejudice and his own gain, is both in morality and law guilty of falshood, and must answer in damages.” [WIGHTMAN, J.-Do the words “ to another's prejudice” apply here? ERLE, J.-—Is every statement in a charter-party essential ?] Every one by which the charterer is induced to enter into the contract. [Erle, J.-You are calling upon us to take judicial notice that the supposed fact of the ship being at Wyburg was a material fact which induced the defendant to enter into the contract. You might, in the same way, assume that the name of the ship was such a fact.] The plea says that the defendant, “confiding in that representation,” entered into the charter-party. If that had been traversed, it would have been for a jury to say whether a reasonable man could have been induced by the representation to make the contract. [WIGHTMAN, J.—The plea does not say that he was induced by it.] The averment in the plea is sufficient, not being specially demurred to. [PATTESON, J.—The replication makes averments to take off the effect of the plea as to the representation; and then you rejoin, in effect, that the assertion *was not
[*641 a mere representation, but a warranty. ERLE, J.-All the cases as to representation import either that the representation was in itself material, or that the parties themselves made it an essential part of their contract. WIGHTMAN, J.-Your plea showing no more than a repre. sentation, is 10t your rejoinder a departure ? And the objection is pointed out on demurrer.] The rejoinder certainly cannot be supported. [WIGHTMAN, J.—The plea will not do, without the rejoinder. Erle, J.—It is clear that the plea does not show any defence on the ground of warranty. But I think also that, if this had been otherwise, the loading in part execution of the contract would have been an answer according to the opinion expressed by PARKE, B., in Olive v. Booker, 1 Exch. 423.+] Per Curiam.(6)
Judgment for plaintiffs. (a) See Ormrod v. Huth, 14 M. & W. 651.7 (6) PATTESON, WIGUTMAN, and ERLE, Js. Lord Denman, C. J., was absent on account of ill bealth.
*The QUEEN v. The Inhabitants of ST. GEORGE, HANO. *642]
VER SQUARE. May 2.
By a local act, 7 G. 4, c. cxxi., the vestrymen of St. George, Hanover Square, were directed
annually to appoint twenty persons, who, with the rector, church wardens, and overseers for the time being, should be governors and directors of the poor, and have the sole care and management of the said poor. Various powers for the management and care of the poor, in the workbouse and otherwise, were given them by other clauses : and it was enacted that any three or more of them might exercise any of the powers given them by the local act. No independent authority in the care or management of the poor was given to the church wardens and over
seers; but the overseers, with the vestry, were to make the poor rates. Held that, after as well as before, the passing of stat. 4 & 5 W. 4, c. 76, and independently of
that act, the governors and directors were the proper parties to appeal against an order of removal: and that, under the local act and sect. 81 of stat. 4 & 5 W. 4, c. 76 (explained, as to the word “guardians,” by sect. 109), a statement of grounds of appeal signed by three
governors and directors, and by no other person, was good. And that such appeal ought to have been allowed by the Sessions, though the order of remoral
was addressed only to the church wardens and overseers, and though a case, submitted by the Sessions to this Court, recited the appeal as preferred by the church wardens and over
seers, not mentioning any other appellant. An order of removal, made after the passing of stat. 9 & 10 Vict. c. 66, need not state that the
pauper had not resided in the parish for five years next before the application for an order to
On appeal against an order by a Police magistrate of the Metropolis, removing Ann Tucker and her children from the parish of St. Luke, Middlesex, to the parish of St. George, Hanover Square, in the same county, the sessions confirmed the order, subject to the opinion of this Court upon a special case.
The case began as follows. “At the General Sessions of the peace," &c., “holden," &c. • Whereas the church wardens and overseers of the poor of the parish of St. George, Hanover Square, in the county of Middlesex, did, at the general quarter session of the peace holden at the Sessions house, Clerkenwell Green, in and for the said county of Middlesex, in the month of January last, exhibit their petition and appeal against an order under the hand and seal of Peregrine Bingham, *643]
Esquire, one of the magistrates of the police courts," *&c.,
bearing date,” “ for the removal,” &c., " which said appeal stood duly adjourned,” &c. “Now, upon hearing the said appeal and what hath been alleged by the said respective parties, &c., “it is ordered,” &c.: confirmation of the order, subject, &c.
The case then set forth the order of removal, which began: "To the churchwardens and overseers of the poor of the parish of St. Luke, in the Metropolitan district and county of Middlesex, and to the churchwardens and overseers of the poor of the parish of St. George, Hanover Square, in the county of Middlesex, and to each and every of them." It then recited a complaint of chargeability, whereupon the magistrate adjudicated upon the settlement, and directed the officers of St. Luke's to remove the paupers to the parish of St. George, and deliver them,
with the order, “ unto the church wardens or overseers of the poor there, or one of them," who were required to receive and provide for them, &c.
The case then stated that, on the hearing of the appeal, the appellants proposed to object that the order did not show the paupers not to ave resided in St. Luke's for five years next before the application for such order. The respondents thereupon required the appellants to prove their notice of appeal; and it was thereupon proved, and was as follows: - To the church wardens,” &c., of St. Luke. “Whereas, by a certain order," &c.; reciting the above-mentioned order of removal; “ by which said order the governors and directors of the poor of the said parish of St. George,” &c., “ are aggrieved. And whereas the governors and directors of the poor of the said parish of St. George, Hanover Square, have duly appealed against the said *order to the general quarter
[*644 sessions," &c. (Middlesex January quarter sessions); and the said appeal was then and there by the said Court of Quarter Sessions duly respited to the then and now next general quarter sessions, &c. (for Mildlesex); at which &c. (notice of trial at those sessions). And “ we the undersigned, being three of the governors and directors of the poor of the said parish of St. George, Hanover Square, do hereby give you notice of the said appeal, and of the respiting hereof. And, further, that the grounds and matters of the said appeal are as follows. 1. That the said order, the examinations upon which it was made, and the notice of chargeability which accompanied the same, are, and each of them is, bad and insufficient in law upon the faces thereof respectively." The 2d and other grounds were not material; they traversed the settlement, and alleged a derivative settlement in a third parish. The notice was signed, " RICHARD Mills. Three of the governors and directors of the poor WRIGHT INGLE. of the parish of St. George, Hanover Square." A. DUNCOMBE.
The respondents then objected that the individuals who had signed the above notice had no legal authority to do so; and that it could only be legally signed by the churchwardens and overseers. It was agreed that stat. 7 G. 4, c. cxxi., local and personal, public, should be considered part of the case. The signatures to the notice were the signatures of three governors and directors duly appointed under the act. contended by the appellants that the notice was properly signed. The sessions held the above objection good, and confirmed the order as before stated. The questions for the opinion of this Court were: *Whether the notice of appeal was signed by parties who
[*6+5 had legal authority to give such notice: and, if the Court should hold the notice good, then: Whether the order of removal was bad, inasmuch as it did not show the paupers named in it not to have resided in St. Luke's for five years next before the application for an order to
If this Court should be of opinion that the notice was suffi