1827. HOGARTH v. JACKSON. called the Andrew Marvel, both of them engaged in the whale fishery. The plaintiffs' crew had struck a whale, which was shortly after struck by the defendants' crew, and the question was, whether, at the time when the defendants' crew struck, the whale was what is called in the trade a fast or a loose fish. The custom of the fishery as relied on by the defendants was that which was mentioned in a note to the case of Fennings v. Lord Grenville (a), viz. that "while the harpoon remains in the fish, and the line continues attached to it, and also continues in the power or management of the striker the whale is a fast fish, and though during that time struck by a harpoon of another ship, and though she afterwards breaks from the first harpoon, but continues fast to the second; the second harpoon is called a friendly harpoon, and the fish is the property of the first striker, and of him alone. But if the harpoon or line breaks, or the line attached to the harpoon is not in the power of the striker, the fish is a loose fish, and will become the property of any other person who strikes and obtains it." But the witnesses for the plaintiff proved it to be the uniform usage, that, whether the harpoon continues in the body or not, if the fish is attached by any means, such as the entanglement of the line, or other cause, to the boat of the party first striking it, so that such party may be said to have the power over it, it is considered as a fast fish, and cannot be taken by any other vessel. BEST, C., J., in summing up, said-The custom mentioned in the case in Taunton differs from this, but I think this is the more reasonable custom, as, the fish being in the water, it is not easy to discover whether the harpoon is in its body or not. The Jury, upon the facts, found that the fish was a fast fish, and gave a verdict for the plaintiffs. (a) 1 Taunt. 243. Wilde and Spankie, Serjts., and Chitty, for the plaintiffs. Taddy, Serjt., Brougham, and Alderson, for the de fendants. [Attornies-Blunt & Co., and J. E. Alderson.] 1827. HOGARTH v. JACKSON. BANKS v. KAIN. TROVER for a table cover, and thirty-six chairs.-The plaintiff was the master of the ship Haydon, of which the defendant had a mortgage, under which he had taken possession of the ship, and the chairs, &c., in question, which were in the cabin; and the dispute was, whether he had a right to retain them as belonging to the ship, or the plaintiff to recover them as his private property. For the plaintiff, the person of whom he bought the chairs was called as a witness. He stated, that they were sold' on March 3rd. In an action of trover for goods, the party who sold them to the plaintiff, on an understanding that if they were not paid for they were to be returned, is a competent wit ness for the plaintiff, al though he has not been paid, the understanding, that if they were not paid for, they and the plain were to be returned, and that he had not been paid. Wilde, Serjt., upon this objected, that the witness was interested, because, if the plaintiff recovered, he (the witness) could have the chairs back. Taddy, Serjt., replied that the witness stood indifferent between the two parties, for if the goods were not returned he would be entitled to the price of them. Wilde, Serjt., observed, that there was a great difference between having the right to take the article itself, and being obliged to sue a man to obtain the price of it. BEST, C. J.-I think the witness is competent. It seems to me that he stands indifferent between the parties. Verdict for the plaintiff. Taddy, Serjt., and Steer, for the plaintiff. Wilde, Serjt., for the defendant. [Attornies-Cox, and D. H. Williams.] tiff's succeeding in the action will enable him to have them back. 1827. COURT OF KING'S BENCH. Second Sittings at Westminster, in Easter Term, 1827. BEFORE LORD TENTER DEN, C. J. May 21st. Evidence that CASE against the at the door of a booking office, there is a board on which is painted, "conveyances to all parts of the world," and a the loss of a box. Plea. Not Guilty. UPSTON v. SLARK. defendant as a common carrier, for There was also a count in trover. It appeared that the defendant kept a booking office in Piccadilly, at which parcels were booked for a consilist of names of derable number of coaches and waggons, and that in October, 1826, the box in question was booked there, to go places, is not sufficient proof that the owner of the office is a common carrier, so as to charge him for the loss of a box which was booked there. 66 by the Windsor waggon. It was proved, that the defend- Lord TENTERDEN, C. J.-There is no proof that the defendant is a carrier; the plaintiff has declared against him as a carrier. Scarlett, A. G. for the plaintiff.-The defendant opens his office to receive parcels as a carrier, and we know no other. Archbold, on the same side.-Does not your Lordship think, that by opening an office of this sort, and painting up a list of places that goods will be conveyed to, he holds himself out as a carrier? Lord TENTERDEN, C. J.-We know that there are in this town, booking offices that do not belong to the carriers; and I am clearly of opinion that you cannot convert the keeper of a booking office into a carrier (a). The plaintiff's counsel wished to go on the count in trover (b); but it being proved on the part of the defendant, that his porter delivered the box in due course to a person named Hunt, who was a Windsor carrier, the plaintiff was Nonsuited. Scarlett, A. G., and Archbold, for the plaintiff. Gurney, for the defendant. [Attornies-Upston, and Robinson.] (a) See Newborn v. Just, ante, 76. (b) See the notes to the case of Griffiths v. Lee, ante, Vol. I. 110, n. 1827. UPSTON v. SLARK Sittings at Westminster, after Easter Term, 1827. WINKFIELD and Another, Assignees of ROBINSON, a Bank rupt, v. PACKINGTON, Bart. ASSUMPSIT for work and labour. issue. May 29th. Plea-General If, before send It appeared that Robinson the bankrupt had been a carrier by barges on the canals from London to Worcestershire, and that he had carried a quantity of trees for Sir ing goods by a carrier, the sender applies at his wharf to know at what price certain goods will be John Packington, from Hammersmith to Hanbury wharf, carried, and he is told by a clerk who is transactgoods, the carrier ing the business there, 2s. 6d. per cwt., and on the faith of this he sends the cannot charge more, although it be proved that the carrier had previously ordered his clerks to charge all goods according to a printed book of rates in which 3s. 6d. per cwt. was set down for goods of the sort in question. 1827. V. in the county of Worcester. It was proved that the reWINKFIELD gular price of the carriage would be 70s. per ton, and PACKINGTON. that the order given by Robinson to his clerks was to charge goods carried according to a printed book of rates, in which 70s. a ton was the price specified for trees. The defence was this: That before the trees were sent, a person named Lee (at the desire of the defendant) called at Robinson's wharf, at Hammersmith, and asked at how much per ton, trees would be carried to Hanbury wharf, and that the clerk who was in the office there replied, half a crown per cwt. (which amount had been paid into court). Lord TENTERDEN, C. J.-If a person goes to the office of a carrier, and asks what a thing will be done for, and he is told by a clerk or servant who is transacting the business there, that it will be done for a certain sum, the master can charge no more. Denman, C. S.—I submit, that, it being contrary to his orders, the clerk had no right to agree that the trees should be carried at a rate lower than that expressed in the book. Lord TENTERDEN, C. J.-The only question is, whether the account given by the defendant's witness, that the clerk of the bankrupt said that the trees would be carried for half a crown a hundred, is correct. It is said that this person had no authority to make such a bargain; however, I am of opinion that it signifies nothing in this case, whether the bankrupt's servant did his duty, or made a mistake. For if the trees were sent on the faith that they would be taken at a given price, in consequence of what the clerk said, it is quite clear, that the plaintiffs can recover no more. Verdict for the defendant. |
