J.C. Rainy v. Bravo. 1872 ported by the learned Chief Justice, thus appears upon his notes: "The substance of the letter which I read out I recollect, it was to this effect;" undoubtedly these words, if taken alone, would import that the witness was giving merely the effect of the letter; but their Lordships cannot think, that that is what the witness was really doing; they consider that what he was really attempting to do was to give the words as far as [296 he recollected them, and this view of the evidence is borne out by the mode in which the note of the learned Chief Justice is subsequently taken. For the note goes on: "I was to tell Gilpin his case was not a case for a lawyer, and that he (the Major) was detained at Government House and could not come down that day.” Then the note goes on, "The letter said;" which seems to imply that the witness was then giving his recollection of the words of the letter. The Chief Justice's note is in these terms: "The letter said he had heard Gilpin had employed Mr. Rainy (the plaintiff) but Mr. Raing was not allowed to practice in his Court until he had apologized for his conduct toward him (the defendant) whilst he was sitting on the Bench of the Police Court some time before." Then, in another part of the evidence it is stated, "I read the letter out because there was a direction in the letter for me to tell Gilpin and the people that on account of Mr. Rainy's conduct towards the magistrate (the defendant) he had prohibited him from practising in his Court until he had apologized for his conduct towards him." Therefore, the witness states what was the direction in the letter, and apparently in the words in which the direction was given, according to the best of his recollection. And again he says, in reply to a question of the Chief Justice, "There was a direction in the letter to tell Gilpin and the people about the plaintiff's conduct toward the defendant, and the defendant having prohibited him practising in his Court until he had apologized for his conduct." It is not necessary to go through the other witnesses, but it seems to their Lordships that, taking the whole of the note together, the witness Metzger, was not merely giving the effect, or the inference that he drew from the language of the letter, but that he was endeavoring to give, as far as he could, the very words of the writing. Their Lordships, therefore, are disposed to come to the conclusion that the learned Judge ought not to have wholly dismissed this evidence from his mind in coming to a decision upon the case. But, assuming that this evidence ought to have been regarded, their Lordships think there was still a fatal variance between the proof and the declaration, on the ground that words greatly inodifying those alleged in the declaration are not se: [297 out. The libel as it stands, substantially imputes that the ap3 ENG. REP. 26 1872 Rainy v. Bravo. J.C. pellant was prohibited generally from practising in Court, and, as pointed by the innuendo, that he was not an honest man. Their Lordships by no means desire to give an opinion upon the question, whether that innuendo is supported by the writing. The actual words, as proved, are, that the appellant was prohibited only until he had made an apology for an insult offered to the respondent. Both the passages may be defamatory, but they are libels of a very different character. When a passage contains in itself a complete charge, and is not modified by other passages in the same letter, it is not necessary to set out the whole. But it is not so in this case. The omitted words clearly change the complexion of the imputation, and affect the inference sought to be drawn from the reference to the other attorney, who is described as an honest man. Even, therefore, if the evidence which the learned Judge shut out from his consideration had been regarded, their Lordships are of opinion, that the declaration was not supported by reason of the words of the libel not being correctly set out in the declaration.* 299] *Their Lordships, therefore, will advise Her Majesty to direct that the order of the Supreme Court be varied, and that an order be made for a new trial, with leave to the appellant to amend his declaration as he shall think fit, on the terms of the defendant being allowed to plead de novo, and of the appellant paying the costs of the trial and all subsequent costs already incurred in the Court below. With regard to the costs of the appeal their Lordships think, 300] *that they also must be borne by the appellant. What they propose to advise is an indulgence to him, for he did not apply to amend the pleadings at the proper time, and he refused a nonsuit when he might have had it. The subsequent costs their Lordships think are mainly attributable to what they must deem to be errors on the part of the appellant in these respects. Their Lordships, as I have said, will humbly advise Her Majesty to the above effect, butthey desire to intimaten to the parties that the case appears to be one in which they might do well to agree to a stet processus. They cannot judicially advise that course, but they throw it out for the consideration of the parties. The effect of a slel processus would be that each party would pay his own costs, including the costs of the appeal; and having made this suggestion their Lordships will delay their report to Her Majesty to give the parties an opportunity of con sidering it (). Solicitors for the Appellant: Lambert & Burgin. *The portion omitted relates to a question of practice of no consequence in this country.-N.C.M. (') The respondent refused to agree to a stet processus, and taxed the costs. *CASES DETERMINED BY THE COURT OF QUEEN'S BENCH, AND BY THE COURT OF EXCHEQUER CHAMBER [566 ON ERROR AND APPEAL FROM THE COURT OF QUEEN'S BENCH, IN AND AFTER TRINITY TERM, XXXV VICTORIA. May 22, 1872. FRASER and others v. THE TELEGRAPH CONSTRUCTION AND MAINTENANCE COMPANY. [Law Reports, 7 Queen's Bench, 566.] Bill of Lading, Construction of Contract under — Description of Vessel as Steamship. Goods were shipped by plaintiffs on board defendants' vessel, under a bill of lading, "shipped on board the steamship Hibernia . . . from Singapore to London... with liberty to call at any ports, in or out of the route, to receive and discharge coals . . . &c., and to tranship the goods by any other steamer": Held, that the contract of the defendants was that the goods should be carried on board a ship in which the principle motive power during the voyage should be steam. FIRST COUNT, that, in consideration that plaintiffs would at defendants' request cause to be shipped on board a certain steamship of the defendants, called the Hibernia, which was then possessed of such motive and propelling powers as steamships of the class of the Hibernia ordinarily are possessed of, certain goods, to wit, black pepper and coffee, for reward to defendants, defendants promised that they would carry the said goods in the said steamship from Singapore to London, and would during the voyage *use and employ the motive and propelling [567 powers belonging to the said steamship; that plaintiff accordingly shipped the goods; breach, that defendants did not use and employ the motive and propelling powers of the steamship in the manner in which such powers are employed by steamships in the usual course of navigation, whereby the goods were delayed on the voyage and plaintiff's lost their market. Second count, that plaintiff's delivered to be carried in the Hibernia the goods as in the first count mentioned, and it became the duty of defendants to use the motive powers as in the first count mentioned; breach, that they did not. Third count, that, in consideration that plaintiff's would ship goods on board the steamship Hibernia, to be carried, &c., as iù 1872 Fraser v. Telegraph Construction Company. the first count defendants promised that they would carry within a reasonable time, which they did not do. Fourth count, alleging that it was the defendants' duty to carry the goods within a reasonable time. Fifth count, that the goods were delivered to defendants, as carriers of goods, to be carried within a reasonable time; breach, that they did not so carry. The material pleas were a traverse of the promises and duty respectively as alleged, and of the breaches, on which issue was joined. At the trial before Mellor, J., at the sittings in London after Michaelmas Term, 1871, it appeared that the plaintiff's are merchants at Singapore, and they in November, 1870, shipped some pepper and coffee on board the defendants' vessel the Hibernia, under bills of lading in the following form: "Shipped in good order and condition in the steamship Hibernia . . . lying off the port of Singapore, and bound for London, having liberty to call at any port or ports in or out of the customary route in any order to receive and discharge coals, cargo, and passengers, and for any other purpose. . . to tow and assist vessels. . . and to tranship the goods by any other steamer, 1796 bags black pepper, to be delivered in like good order and condition at the port of London, inter alia, damage from machinery, boilers, or steam, however caused, or from explosions, heat, or fire on board . . . default of engineer excepted, at 2. per ton of 16cwt." The Hibernia was what is called an auxiliary screw steamer, 568] and *not a full power steamer. The captain admitted that, acting on the defendants' instructions, he had made a sailing voyage home, having originally only 500 tons of coals on board, and 50 tons remaining at the end of the voyage; but on the voyage he met with an unusual amount of calm weather. The voyage took 135 days, being longer than an ordinary voyage of a sailing vessel, and from sixty to seventy days being the average voyage of a steamer round the cape. The plaintiff's relied on the third and fourth counts. The learned judge left it to the jury to say whether, having regard to the nature of the vessel and the weather, the voyage had been made in a reasonable time or not. The jury found for the defendants. A rule was obtained for a new trial, on the ground that the judge had misdirected the jury in not telling them that the contract was for carriage in an ordinary steamship; and that the verdict was against the evidence. Pollock, Q.C., and Cohen showed cause, and contended that there was no warranty in the bill of lading that the Hibernia was an ordinary steamship, which was what the contention for the Fraser v. Telegraph Construction Company. 1872 plaintiffs amounted to. "Shipped in the steamship Hibernia” was no part of the contract, it was merely the description of the vessel on board of which the goods were received. Sir J. B. Karslake, Q.C., and A. L. Smith were not heard in support of the rule. COCKBURN, C.J. I think this rule should be made absolute. The miscarriage, I think, has arisen from the virtual abandonment of the first two counts, though, undoubtedly, when we come to look at the declaration more closely, the same questions are involved in the third count, which alleges a non-performance of the contract on the part of the shipowners in not navigating with reasonable expedition. The first question which we have now to dispose of is, whether on the terms of this contract it was necessary that the ship should be a steamship. She is expressly so called in the bill of lading. The bill of lading also contains a provision, which is not unimportant, that the vessel shall be at liberty to call at *any port or ports in or [569 out of the accustomed route in order to receive or discharge coals. She is also at liberty to tranship goods into any other steamer. The effect of the whole of that is, I think, to make it incumbent on the shipowners that a vessel, by which these goods are to be shipped, and for the shipping of which goods on board the vessel the bill of lading is given, shall be a vessel propelled by steam. I am very far from saying that where it is convenient, as it often is, for a steam vessel to use sailing power instead of steam power when the wind happens to be favorable, it is necessary that the vessel should be at all times and under all circumstances propelled by steam; but the meaning of a vessel being a steamship is, that the principal motive power used shall be the power of steam, and not sails. I think that is the true meaning of this contract, and, therefore, that it should have been left to the jury to say whether the vessel had satisfied those conditions. But I must still adhere to what I said in the course of the argument, that, even supposing the true construction of the contract should be, that an auxiliary screw steamer would have satisfied the terms of the bill of lading, it appears to me that that involves that the auxiliary screw power should be used so far as it is reasonably possible. It might happen that a vessel might be driven out to sea far from a coaling port, and unable to get coal; but so far as it is practicably possible, there is an engagement that the auxiliary steam power shall be forthcoming; and it is not enough for the captain to say, "I will use my discretion in carrying out the instructions of my employer, and I will make this a sailing voyage, and therefore it is not necessary, when my coal is exhausted by adverse winds, to put into any port for coal." If the case goes down to a new trial, and it should be |