C. P.]

THE CONSERVATORS OF THE RIVER THAMES V. HALL AND ANOTHER.

Merchant Shipping Act 1854 (17 & 18 Vict. c. 104). 2. That the provision of the 96th section of the Thames Conservancy Act 1857, being a general provision, does not affect the particular cases within the former Act.

The Thames Conservancy Act 1857 (20 & 21 Vict. c. cxlvii.) contains the following:

Section 96:

[C. P.

BYLES, J.-I am of opinion that the defendant is entitled to our judgment. First of all, the Merchant Shipping Act 1854 is express: "No owner or master of any ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship, within any district where the employment of such pilot is compulsory by law." This is an enactment which, I apprehend, embraces in its scope the navigable portion of the Thames. Of this provision it is acknowledged there is no express repeal, but we are asked by the plaintiffs to imply that the Legislature intended that the words of the 96th section of the Thames Conservancy Act 1857 should have the effect of repealing that section of the Merchant Shipping Act, at least within the limits of the conservators' privileges and duties. We must, however, be well satisfied that the two Acts cannot be read together before we hold that the later is to imply the repeal of the earlier. I think there is no necessary inconsistency between them, and I do not agree with Mr. Prentice that the plaintiffs ought to have any privileges in a matter of this kind beyond those of other people as established by statute. If you read the first part of the 96th section with scrupulous strictness, it is perhaps susceptible of the construction put upon it by the plaintiffs, but it appears when the 97th section is read with the one before that, the owner or master is liable to the conservators, shall repay all such damages, satisfaction, and compensation provided that every such boatman or other person

The owner of every vessel navigating the River Thames shall be, and he is hereby made answerable for all trespasses, damages, spoil, or mischief that shall be done by such vessel, or by any of the boatmen or other persons belonging to or employed in or about the same, by any means whatsoever, to any of the property or effects of the conservators on the banks or other works erected, maintained, or repaired under the provisions of this Act; and the owner of every such vessel shall, for every such trespass, damage, spoil or mischief so -committed as aforesaid, upon conviction of the person so committing the same, before any justice, on the oath of any credible witness, or on the confession of the party offending, pay to the secretary of the conservators such damages, satisfaction, and compensation as shall be ascertained, fixed, and determined by such justice, together with all costs, charges, and expenses attending such conviction, provided that such damages, satisfaction, and compensation shall not exceed the sum of twenty pounds, besides the costs of such conviction; and in case such damages, satisfaction, or compensation and costs shall not be paid on demand, the same shall be recoverable in the same manner as any penalty is by this Act directed to be recovered; but in case such damage shall exceed the sum of twenty pounds, the said owner may be sued by the conservators for such damages, satisfaction, or compensation. Sect. 97:

Provided always that every such boatman or other person so offending as last aforesaid, shall be answerable for, and

as shall be so ascertained, fixed, and determined, and recovered as aforesaid, with all the costs of levying and recovering thereof, to his master or owner; and in case of nonpayment thereof on demand, on oath made by such master or owner of the payment made by him of such damages, satisfaction, compensation, and costs, and that the same have been demanded of such boatman or other person respectively, but that the same have not been repaid (such oath to be made before any justice), the amount thereof shall be recovered in like manner as any penalty is hereby directed to be levied and recovered by warrant under the hand and seal of such justice.

Prentice, Q. C. (with him W. E. Frere) argued for the plaintiffs. By the 388th section of the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104) the owner of a ship is exempted from liability for any loss or damage occasioned by the fault or incapacity of any qualified pilot, when the employment of a pilot is compulsory. But the Thames Conservancy Act was passed in 1857, and it has been held that when the provisions of two statutes are inconsistent, the later overrules the earlier: (Dean of Ely v. Bliss, 5 Beav. 582.) Here the Legislature intended that the conservators should have a special remedy against the owners of ships who enjoy the benefit of the Conservancy Act, beyond that which other persons have by the law:

Brown v. Mayor, &c., of City of London, 31 L. J. 280,
C. P.;

Daw v. Metropolitan Board of Works, 31 L. J. 223,
C. P.; 6 L. T. Rep. N. S. 353.

Great Central Gas Consumers Company v. Clarke, 32
L. J. 41, C. P.

Honyman, Q.C. (with him Watkin Williams) for the defendants. It could not have been the object of the Legislature to overrule a special provision of the Merchant Shipping Act by the general words contained in this section of the Conservancy Act: (Mau. & Pol. Sh. 221.) And general words in an Act of Parliament cannot by implication repeal a special provision of a previous Act: (Fitzgerald. v. Champneys, 2 J. & H. 31.) Moreover the Conservancy Act requires as a condition precedent to the liability of the owner the conviction of an offender; it is impossible to convict the ship, and the person offending must be belonging to or employed in or about the ship; these words cannot include the pilot. (Stopped by the court.)

Prentice in reply.

so offending shall be answerable to his master or
owner. Now, then, who is the person offending
here? Clearly the pilot, and as the shipowner
cannot be said to be his master or owner, it seems
to me that he cannot be included in the words "such
boatman or other person." The first clause of the
96th section may make the owner or master liable
for damage done either when conducting the navi-
gation of his ship himself, or when his servants are
so employed, as appears from the words "or by any
of the boatmen or other persons belonging to or
But it appears by
employed in or about the same."
the following section that the person against whose
master or owner compensation has been awarded,
must repay his master or owner, evidently referring
to boatmen and servants of the owner or master.
It cannot be the pilot, for he is appointed by
superior authority, and his selection is not in the
power of the people of the ship. The two sections
of the Conservancy Act evidently were intended to
convey this meaning without reference to the Mer-
chant Shipping Act; and the 388th section of the
latter Act is so clear that there can be no doubt of
the proper construction of the two statutes.

KEATING, J.-I am of the same opinion. Sect. 388 of the Merchant Shipping Act 1854 is clear and positive, and seems to me also to be based on the simplest principle of natural justice; the master of the ship being obliged to take the pilot who comes on board, and in whose selection he has no choice, he is very properly not responsible for his faults; the section of the Conservancy Act relates only to boatmen and servants. I entirely concur with my brother Byles that we ought to hold that one Act is repealed by another without express words only where the implication is clear and precise, and what is termed necessary. The object of sect. 96 is simply to give the conservators power to look to owners rather than subordinates, and by sect. 97 the remedy which is given over against the refer to servants and boatmen and not to the pilot. subordinates clearly shows that the two sections only

M. SMITH, J.-I am of the same opinion. The section of the Merchant Shipping Act contains special legislation exempting owners from liability for damage

The general rule is, that where a cause is tried in London the costs of attendance at the trial of both the country attorney and the London agents will not be allowed, but the master should exercise his discretion and allow the costs of both in exceptional cases, where the personal knowledge of the country attorney is important and his attendance desirable.

This was an action to recover damages for the infringement of a patent. The defendant resided at Held, that the defendant was concluded from making Stockport, and the venue was laid by the plaintiff such an objection.

Ex.]

SHOEBOTTOM (administratrix) v. EGERTON AND OTHERS.

should be made absolute. It is very important that all cases of this kind should be strictly watched by the masters. In all ordinary cases it is not necessary that the country attorney should attend at the trial as well as the London agent, but in this case it does not appear that the particular circumstances have been considered, or that the master has exercised his discretion, but it appears that he has acted upon the general rule. This case, however, appears to be an exception, and a case in which the personal knowledge of the country attorney was important, and it was the plaintiff who brought the cause to London. It would be hard, therefore, that the plaintiff should deprive the defendant of the assistance of his attorney, or make him pay for it out of his own pocket. I think, therefore, that the master should inquire into the case and exercise his discretion, and that for that purpose it should go back to him.

BYLES, J.-I quite approve of the general rule, but I think the master should exercise a discretion, and that is all we say.

KEATING and SMITH, JJ., concurred.

Rule absolute.

[Ex.

the original Bridgwater system; and a rule having accordingly been obtained, to enter a nonsuit on the point reserved, or for a new trial on the ground of misdirection, it was

Held, that there was no misdirection. The defendants for hire and reward, permitting bargemen to moor their barges at certain mooring places on the canal, were bound to keep the whole of the premises, and all the ways to the caral over which the bargemen passed to and from their boats, in good repair; and that it was immaterial whether the way in question was or not the nearest way; or that the locus in quo originally formed no part of the Brigdwater Trust, it having been for many years past converted to and used for the purposes of the trust in the same way as the rest of the trust property.

This was an action, brought under Lord Campbell's Act, by the widow and administratrix of one John Shoebottom, deceased, formerly a boatman, against the defendants who were the trustees acting in the execution of the trusts of the late Francis, Duke of Bridgwater, to recover damages, by way of compensation, for the death of her husband through the alleged negligence of the defendants' servants. The declaration charged that the defendants were

Attorneys for the plaintiff, Worthington and possessed of a close of land, and a certain navigable

Plunkett.

Attorneys for the defendant, Gregory, Rowcliffe, and Co.

COURT OF EXCHEQUER. Reported by H. LEIGH and E. LUMLEY, Esqrs., Barristersat-Law.

Thursday, Jan. 16.

SHOEBOTTOM (Administratrix) v. EGERTON AND

OTHERS.

Action for negligence-Liability of trustees of Bridg-
water Canal to keep all accesses thereto in repair.
The plaintiff's husband, a bargeman in charge of a boat
navigating the Bridgwater Canal, and for which toll
was duly paid to the defendants as trustees of the
canal, moored his boat at one of the mooring-places on
the banks of the canal, a slight distance below a bridge
across a basin there, communicating with a dock of
the defendants called the Market or Potatoe Dock; and
having done so he went into the town, and on return-
ing thence from a public-house, about two o'clock in the
night, in passing over the above-mentioned bridge,
in order to get back to his boat to bed, he fell through
a hole in the floor of the bridge into the basin and was
drowned. The plaintiff, as his widow, brought an
action under Lord Campbell's Act against the
defendants as trustees of the canal, and at the
trial it appeared that the land, on which the
bridge, basin, and dock in question were constructed,
was not originally part of the Bridgwater Trust
Property, but was purchased by the late Duke of
Bridgwater some years after the passing of the
33 Geo. 2, c. 2. under which the main line of the canal
was constructed, and that ever since the said bridge,
basin, and dock had been built, some eighty years ago,
they had been converted to and used for the purposes
of the trust in the same way as the rest of the trust-
property. The learned judge (Martin, B.), left three
questions to the jury: 1st, whether it was the duty of
the defendants to keep the bridge and the accesses to
their canal in repair? 2nd, whether the bridge was
out of repair? 3rd, whether the deceased contributed
to the accident by being drunk? and the jury found a
verdict for the plaintiff for 4001. damages, leave being
reserved to the defendants to move the court on the
question whether it made any difference in the liability
of the defendants that the locus in quo was not part of

canal which all the Queen's subjects were entitled to navigate for reward to the defendants, and of divers basins and mooring places upon the said canal, and of a certain bridge across one of the said basins, and leading to the said mooring places, for the use of, and which was used by, boatmen navigating the said canal for reward to the defendants, or using the basins of the defendants, or proceeding towards or coming from the said mooring places, and it charged a duty in the defendants to keep the said bridge in a safe state, and yet that they knowingly and negligently kept the said bridge in so improper a state as to render it dangerous for persons lawfully passing over the same, and that the deceased was a boatman navigating the said canal for reward to the defendants in and upon a certain boat, which was then moored at one of the said mooring places, and the said deceased was lawfully upon and using the said bridge, &c., without notice of the dangerous condition thereof, and thereupon, through the said wrongful and negligent conduct of the defendants, in so knowingly keeping the same in such dangerous state, the said deceased fell into the said basin of the defendants and thereby lost his life within twelve calendar months, &c.

The defendants pleaded:-1. Not guilty. 2. That all the Queen's subjects were not entitled to navi gate the said canal as alleged, and that the said basins and mooring-places were not connected with the said canal, nor used for boats navigating the same, and that the said bridge was not for the use of or used by boatmen navigating the said canal as aforesaid, or using the basin of the defendants, or proceeding towards or coming from the mooringplaces as alleged. 3. Further, as to the first count, denying any duty in defendants during their possession to keep and maintain the said bridge as aforesaid. 4. That the said John Shoebottom was not a boatman navigating the said canal as alleged, nor was the said boat moored at one of the said mooring-places as alleged, nor was the said J. Shoebottom lawfully upon and passing and walking over the said bridge, and using the same as alleged. On all which pleas issue was joined.

At the trial, before Martin, B. and a special jury, at the last Winter Assizes at Manchester, it appeared that the deceased was in charge of two boats laden with stone for paving and macadamising purposes, and had arrived in Manchester some time before the 12th Dec., having come up the defendants' canal, and his employers had since paid the toll in

Ex.]

SHOEBOTTOM (administratrix) v. EGERTON AND OTHERS.
|

respect of the cargoes. Having unloaded his boats
in the Rochdale Canal, at a point beyond the Bridg-
water Canal, he returned with the empty boats to
the last-named canal, and moored them on the off
or non-towing path side of the canal, a slight dis-
tance below a bridge across a basin communicating
with the market or potatoe dock. Having gone into
the town with a fellow boatman, the two men
returned from a public-house there between one and
two o'clock in the night between the 11th and 12th
Dec., and the deceased, in passing over this bridge,
in order to get to his boat to bed, fell through a hole
in the floor of the bridge into the basin, and was
drowned.

It appeared that the site of the Potatoe dock, where the accident happened, originally formed no part of the Bridgwater system, but was purchased, many years subsequently by the late Duke, of a Mr. Lloyd, and that the basin and wharves there were not made until eighty or ninety years after the passing of the 33 Geo. 2, c. 2, under which the main line of the Bridgwater canal was constructed.

It was contended by the defendants at the trial that the deceased had no right to be where he was; that, if not there as a trespasser, he was a bare licensee, and that he ought to have gone by the ordinary and more direct way to his boat. But it appeared that, though there was another and nearer way, the boatmen had generally passed over this bridge without any interruption or denial on the part of the defendants.

It was proved that the bridge in question had been out of repair for a week at least before the accident happened.

Martin, B. left to the jury three questions, namely, first, whether it was for the defendants to keep the bridge and the accesses to their canal in repair? second, whether the bridge in question was out of repair? third, whether the deceased contributed to the accident by being drunk? The jury found a verdict for the plaintiff, with 4007. damages, and the learned judge reserved leave to the defendants to move the court on the question whether or not it made any difference in the liability of the defendants that the locus in quo was not part of the original Bridgwater estate.

Quain, Q. C. (with him was C. Crompton) for the defendants, now moved accordingly for a rule to enter a nonsuit on the point reserved, or for a new trial on the ground of misdirection on the part of the learned Baron. It was proved on the part of the defendants at the trial that the market dock, where the accident happened, was not originally part of the Bridgwater Canal system. There was no right of way over it for the public, who were mere licensees, the locus in quo being the private property of the defendants, the Bridgwater Trustees, and on that point leave to move was reserved by the learned judge. [MARTIN, B.-The defendants bought this bit of land and converted it to the purposes of the Bridgwater Trust.] There was no pretence of any dedication. The boatmen avoided the regular gates by getting in through Canalstreet. [KELLY, C. B.-Was there a right of public entry, and had the deceased a right to be where he was?] He was a bare licensee, not having been turned back. He had not come by invitation. [KELLY, C. B.-Was there any barrier between this way and the way you say he ought to have gone? CHANNELL, B.-He may have had a right of way, and SO would have been no trespasser, or he may have been a licensee or a trespasser. The general rule is that a licensee must take the place as he finds it.] The learned baron left it to the jury to say whether the defendants ought to have repaired the bridge, and he put it on the same ground as the case of a shopkeeper

[Ex.

inviting the public to enter his shop. I contended
on the contrary that it was a question of law, and
that there was no duty on the defendants to repair
as against the deceased, for he was not invited and
had no right and no business to be where he was.
when he fell in; it was out of his way. [MARTIN, B
He was going home to his bed in his boat.] The
present case cannot be put higher than the case in
the Common Pleas of Gautret v. Egerton and others-
(the same defendants as here), 16 L. T. Rep. N. S.
17; L. Rep. 2 C. P. 371 ; 36 L. J. 191, C. P., and the
judgment there was for the defendants on demurrer.
KELLY, C. B.—The present is a way of necessity.
MARTIN, B.-I call it a purchased way. The de-
claration here would seem to be framed so as to
escape from the judgment in Gautret v. Egerton.]
The declaration here is very similar, and it is con-
tended there is no liability or duty on the defendants
to the deceased. The dock here was only lighted
when in use, and not being in use on this night there
was no light. It was similar in principle to the
case of Hounsell v. Smyth, 1 L. T. Rep. N. S. 440;
7 C. B., N. S., 731; 29 L. J. 203, C. P. [MARTIN,
B.-The whole was an open dock with wharves and
basins, and my impression was and is that the
deceased had a right to get to his boat over any
part of it. There was no distinction between one
part and another, and if there were any part over
which the trustees did not wish the public to go,
they should, as my Lord has said, have put up
a barrier. There can be no doubt that any jury
would find that if the company use the dock for
reward, &c., they should fence it properly.]

KELLY, C. B.-I think there should be no rule here. We are not called on in the present case to settle the liability of any one to fence land over which he has permitted persons to pass as voluntary licensees. The defendants here, for hire and reward, permit the bargemen to moor their barges at certain mooring places on the banks of the canal. It is clear that a part of the contract with the bargemen is that the latter may pass and repass to and from their boats. The persons in possession and charge of the boats must, ex necessitate, have a right of way to them all the way along the canal, sheds, basins, and other works. The trustees permitted the deceased to moor his barge alongside the bank, and the person in charge of the barge could not pass from Wellington-street on the one side, or Liverpool-road on the other, without going over some portion of this place. The deceased here, having moored his boat at the spot in question and gone into the town, was returning at two o'clock in the morning to his boat to bed, and then, instead of going by what is said to have been the nearest or most direct way, he went round by the way of this bridge. It is said that he went out of his way, and that, therefore, the trustees are not liable. But that depends upon the question whether or not they are liable to repair and keep in repair this bridge, so as to enable a man whose barge, for hire and reward to them, is moored to the banks of the canal, to pass across it to and from his barge. The bridge being part of the premises over which, under the circumstances, the person mooring his barge for reward to the defendants along the canal banks had a right to pass, the defendants were bound to keep it in repair. There was an absolute necessity that a person so using the bridge should be protected. It is immaterial, in my judgment, which line of way the deceased took, as I think that a legal liability was thrown upon the trustees to keep the whole of the premises and all the ways over which a person might pass in good repair. This rule, therefore, must be refused.

CHANNELL, B.-I am of the same opinion. The

Ex.]

HANBURY v. LovETT.

[Ex.

admitted that the plaintiff was suing merely as trustee for Bird. The jury found that no express authority had been given to Bird to make the bill payable at any particular place. The learned judge, thereupon, directed the verdict to be entered for the defendant on the third plea, reserving leave to the plaintiff to move to enter the verdict for himself.

first point made here to enter a nonsuit on the the blank pieces of paper, and added before the sigground of the leave reserved, in my judgment fails. nature the words "accepted, payable at 145, EustonThe piece of land in question was bought by the Bridg-road." This was the bill now sued on. It was water trustees many years ago, though subsequently to the original commencement of the Bridgwater Canal system, and it has been used by them ever since the purchase in all respects as the rest of their property. Then it is said that there was misdirection, and cases have been cited to show that a bare licensee cannot complain of any excavation &c. that there may be in the place if he uses it, but that he must take it on the terms on which it is granted by the licensor. That may be so, but that is not at all the present case. The complaint as to misdirection also comes to nothing.

PIGOTT, B.-I take the same view of this case as the other members of the court do. It has been said that the deceased might have gone to his boat by another and a nearer way. Be it so. He had nevertheless a perfect right to go this way. MARTIN, B.-All that I can say is, that I did not at the trial, and that I do not now, appreciate Mr. Quain's objection. I look at the present case as similar to that of the owner of a dock for taking ships in and out, and who is bound to keep it in repair.

Rule refused.

Attorneys for the defendants, N. C. and C. Milne, 2, Harcourt-buildings, Temple, E.C., agents for Slater, Heelis, and Co., Manchester.

Saturday, May 2.

HANBURY v. Lovett.

of these words was not an alteration and did not J. Sharpe now moved accordingly.-The insertion avoid the instrument. I cannot deny that there would have been a fatal alteration if those words had been inserted after the bill was a complete instrument. MARTIN, B.-The real question is whether, by the agreement between the parties, Bird was authorised to make the bill thus payable.] I contend that that question does not arise on the plea of alterations. [BRAMWELL, B.-There is a plea denying the acceptance, and you appear to be in this dilemma: if the acceptance is to be considered as given when the signature was written, there was an alteration; if when the bill was filled up, then there was no authority so to fill it up.] Then I shall submit broadly that a person to whom an acceptance in blank is given is not bound to treat it as a general acceptance. The doctrine of alteration ought not to be extended, inasmuch as it affects bona fide holders. There was nothing on the face of this bill to show that the acceptance was unauthorised. For the convenience of commercial transactions handing to a person such a document as this gives him authority to fill it up as a bill of exchange. And that authority is an authority to fill it up for any amount, and even to insert a place for payment,

Bill of exchange-Acceptance in blank-Addition of on the ground that the instrument may get into place of payment—Alteration-Authority. the hands of an innocent holder for value. To hold otherwise would greatly interfere with the free The person to whom an acceptance in blank had been circulation of such instruments. [BRAMWELL, B.— given for valuable consideration, filled it up as a We are not now dealing with the case of an innocent bill of exchange, but added, before the acceptor's sig-holder for value, but with the question what the nature, words making the acceptance payable at a real contract was between immediate parties.] particular place:

Held, that no authority had been given by the giver of the acceptance in blank, to draw such a bill, and that at any rate as between the immediate parties the acceptance was not binding.

Declaration stated that J. W. Bird, on the 5th day of Sept. 1867, by his bill of exchange, now overdue, directed to the defendant, required the defendant to pay to the said J. W. Bird, or order, 41. 58. 4d., three months after date, and the defendant accepted the said bill of exchange, and the said J. W. Bird indorsed the said bill of exchange to the plaintiff, but the defendant did not pay the same. Pleas, denying the acceptance and indorsement, and that after the said bill was accepted as aforesaid, and after it was issued, it was made void by being materially altered, without the consent of the defendant, that is to say by adding to the defendant's acceptance the words "payable

at 145, Euston-road."

Issue thereon:

The trial took place before Channell, B. on April 29th in Middlesex, when the facts, so far as at present material, appeared to be as follows:-Defendant and Bird had agreed that an outstanding bill then current on which defendant was liable to Bird should be renewed by defendant giving Bird two fresh bills to be payable three months after the date on which the old bill would fall due. In pursuance of this arrangement defendant gave to Bird two acceptances in blank upon paper bearing the requisite stamps.

Bird afterwards drew a bill for the agreed amount payable at the date above mentioned upon one of

MARTIN, B.-I do not think that this acceptance is binding upon the defendant. Here no such transaction had taken place between the parties before, but for the first time in his life, as far as we know, According to the plaintiff's contention, this amounts the defendant gives a blank acceptance to Bird. to an authority to Bird to make the bill payable at any banker's he pleases. In my opinion the effect is to vitiate the acceptance. I therefore think there should be no rule.

BRAMWELL, B.-The question here is not one of implied authority between a bona fide transferee for value and the acceptor. The question is, what the actual authority given was. The short way of putting it is, that there was no evidence of any authority except to draw a bill with a general acceptance. What difference is there between this case and the case of a bill accepted generally, and then altered afterwards so as to make it payable at a particular place?

CHANNELL and PIGOTT, BB. concurred.

Attorney for plaintiff, Kisch.

Rule refused.