the loading of the ship, or in the discharge of it, | the charterer is equally discharged from personal liability as soon as a sufficient cargo is loaded.” The clause therefore does not affect the liability of the defendants as consignees.

Edwyn Jones called the attention of the court to Sanguinetti v. The Pacific Steam Navigation Company (35 L. T. Rep. N. S. 658; 2 Q. B. Div. 238).

POLLOCK, B.-This action is brought to recover the sum of 56l. 138. 4d., claimed for demurrage upon the delay in discharging a ship called the Alette, which was chartered under a charter-party of the 13th Dec. 1881, entered into between the shipowners and the defendants to load from the defendants at Miramichi or Dalhousie a cargo of deals and battens to be carried at a certain rate of freight to a safe port on the west coast of Great Britain. In this charter-party there was the usual clause as to the time to be allowed for loading and discharging the cargo, which was : "Seventeen days, Sundays and holidays excepted, are to be allowed the merchant (if the ship be not sooner despatched) for loading, and for discharging cargo fifteen like days. Lay days to commence when ship is ready in a proper loading and discharging berth respectively; demurrage at the rate of fourpence per register ton per day to be paid to the ship if longer detained." The cargo

was duly loaded and forwarded to this kingdom, and the bill of lading under which the cargo was actually shipped contained the words, "he and they (i.e., the defendants or their assigns) paying freight and all other conditions as per charterparty." Now, this amount is not claimed against the defendants for undue delay in unloading the vessel, as in the old case of Randall v. Lynch (2 Camp. 352), because the plaintiff in his statement of claim does not put forward that as the ground of his claim. But the claim is for demurrage due under the bill of lading, which refers in the manner I have just mentioned to the charterparty. Let us see, then, in what way the consignee is liable under the bill of lading. This appears from the case of Harman v. Gandolph (Holt. 35), where it is said that "the consignee by taking to the goods contracts with the owners of the vessel to perform the terms upon which they have undertaken to convey and deliver them." That is the way the contract arises. Now, in this case, the words of the bill of lading "paying freight and all other conditions as per charter-party,' clearly incorporates into the bill of lading so much of the charter-party as has reference to the receipt of the cargo, and the loading of the ship. This, however is not a claim for demurrage at the port of loading, but at the port of discharge, a fact which becomes important when we come to consider how much of the charter-party is incorporated into the bill of lading. For there is in the charterparty a clause which is called the cesser clause, and which runs: "It is agreed that, as this charter-party is entered into by the charterers for account of another party, their responsibility ceases as soon as the cargo is on board, the vessel holding a lien upon the cargo for freight and demurrage." Now, it is perfectly intelligible that that clause should have full effect in exonerating the charterers from all liability for anything occuring after the shipment of the cargo, because it is very reasonable that they should say that they, being agents for other parties, are not going to be

[Q.B. Div.

liable for anything that occurs after shipment, the goods being always subject to the shipowner's lien. But it does not follow because the charterer is freed from liability at the port of discharge by that clause, that the shipowner's right to sue the consignee for freight and demurrage is displaced. In answer to this, the defendants contend that if you import the charter-party at all into the bill of lading you must import the whole of it, including the cesser clause. But in this case the shipowner is not suing the defendant as charterer, but as assignee of the bill of lading, and the only part of the charter-party which is important at the present time is that which has reference to the delivery of the cargo, and to my mind it seems unreasonable, as a matter of commercial usage, to say that into whosoever's hands the cargo might come they would not be responsible personally for demurrage under the charter-party. I am of opinion, therefore, that the consignee is not less liable because he happens to be the charterer, the ground of his being released from liability as charterer being found in his being agent for other parties. But, apart from this consideration, we have the clear authority of Cotton and Thesiger, L.JJ. in Porteous v. Watney (39 L. T. Rep. N. S. 195; 3 Q. B. Div. 534) for saying that a provision similar to that which is found in the bill of lading in the present case only incorporates into the bill of lading so much of the charter-party as is applicable. I think, therefore, that in this case there must be judgment for the plaintiffs with costs.

LOPES, J.-It is important in this case to remember that this is a claim for demurrage not at the port of loading, but at the port of discharge, and not against the defendants as charterers of the ship, but as consignees of the cargo; and the question for us to consider is what is the contract entered into by the bill of lading. That document contains the words," he and they paying freight and all other conditions as per charterparty." The charter-party, therefore, must be looked at, for it would be impossible for us not to give effect to the words "and all other condi tions as per charter-party." Those words must be looked at with reference to what the charterparty contains. Now, it is clear from the judg ments of Cotton and Thesiger, L.JJ. in Porteous v. Watney (ubi sup.), that these words only import into the bill of lading such of the provisions of the charter-party as are consistent with the circumstances of the case at the time when it becomes necessary to construe the bill of lading. We are bound, therefore, to incorporate the provisions of the charter-party as to demurrage, because those conditions are applicable to demurrage at the port of discharge such as has arisen in this case; but it is equally clear that we cannot import the earlier provisions of the charter-party, which run, "It is agreed that as this charter-party is entered into by the charterers for account of another party, their responsibility ceases as soon as the cargo is on board, the vessel holding a lien upon the cargo for freight and demurrage," for that provision has reference only to the time when "the cargo is on board," and has no application to the state of things at the port of discharge. I think, therefore, that while the condition as to demurrage is ap plicable to the circumstances of this case, that which only relates to the time when "the cargo is on board" is not applicable, or, in other words,

Q.B. Div.]

were paid, and on the 21st Sept. a second distress was put in for 8l., being 11. for rent which had subsequently accrued due, and 71, the balance of the former sum distrained for.

The plaintiff did not serve another notice under the Act, and her goods were sold for 5l. 118. Held, that the notice served on the 5th Sept. in accordance with the Lodgers' Goods Protection Act, was applicable to the first distress only, and that the plaintiff ought to have served a fresh notice when the second distress was put in. Held also, that as between the defendant and S. Thwaites, his immediate tenant, the distress on 21st Sept. was not illegal.

THIS was an action for illegal distress.

In March 1881 the defendant Wilding let three rooms in a house in the Kingsland-road to Stephen Thwaites, the brother of the plaintiff, at a rent of 108. per week. The plaintiff was a tenant to her brother Stephen Thwaites, of one room at the rent of 38. 6d. per week. On the 1st Sept. 1882, there being 81. rent in arrear from Stephen Thwaites to the defendant, Wilding employed the defendant Hancock to distrain for that amount. A distress was put in and all the goods in the three rooms seized. The plaintiff claimed the goods as a lodger, but did not serve a proper notice on the defendant under the Lodgers' Goods Protection Act (34 & 35 Vict. c. 79) until the 5th Sept. The defendant withdrew the distress on the 6th Sept., Stephen Thwaites having paid 11., and having agreed to pay the residue by instalments of 108. per week.

None of the instalments were paid, and on the 21st Sept. the defendant Wilding put in another distress by Hancock, the broker, on the same goods for 8l., being 17. for rent which had accrued due since the former distress, and 71. for the balance of the sum previously distrained for and which Stephen Thwaites had agreed to pay by instalments and failed to do. The plaintiff did not serve a fresh notice under the Lodgers' Goods Protection Act, and her goods were sold for 5l. 11s. The plaintiff had paid all the rent due to Stephen Thwaites down to the date of the seizure.

The learned judge at the trial directed the jury that the second distress having been put in for the amount for which the first distress had been levied was illegal if the jury thought that the plaintiff was a lodger, and that the defendant had withdrawn after notice of that fact was given. A rule for a new trial was granted on the ground of misdirection.

M'Clymont (Shearman with him), for the plaintiff, showed cause against the rule. The second distress was illegal. The defendant had abandoned the first distress and then distrained for the same amount:

Dawson v. Crop, 1 C. B. 961.

It is true that there was rent which had subsequently accrued due, but to the extent of 77. it was illegal. No second notice was necessary under the Lodgers' Goods Protection Act.

[Q.B. DIV.

not in respect of the same rent altogether. The right to distrain certainly existed for the rent which had accrued due since the first distress, and if the defendant had a right to distrain the entry was not a trespass.

July 6.-DENMAN, J.-This action is brought upon a somewhat peculiar statement of claim. It is alleged that the plaintiff was a lodger in a house of which her immediate landlord, who was her brother (Stephen Thwaites), was tenant to the defendant Wilding, and that there being no rent due from her to her immediate landlord at the time, the defendants nevertheless wrongfully broke into and trespassed on the premises, whereby she sustained damage. The defendants deny that the plaintiff was a lodger at the time of the alleged trespass, and say that at such time, viz., on the 21st Sept. 1882, there was due and owing to the defendant Wilding from his immediate tenant the sum of 81. for rent, and that his entry on the premises was a justifiable exercise of his right to distrain. The plaintiff's case is mainly based on the Lodgers' Goods Protection Act, and she claims damages for trespass because the defendant seized the goods after she had given proper notice under the Act. The facts seem to be these: On the 1st Sept. there was 81. 3s. due for rent from Stephen Thwaites to the superior landlord, Wilding, for which a distress was put in. The plaintiff then gave a verbal notice that the goods belonged to her, and on the 5th Sept, she gave a proper declaration or notice under sect. 1 of the Lodgers' Goods Protection Act, and an inventory of the goods which she claimed. The distress was withdrawn after an agreement between the defendant Wilding and his immediate tenant that the latter should pay ll. down and 108. per week until the balance of the amount of rent due should be paid. Between the 5th and the 21st Sept. a further sum of 11. accrued due for rent, and Stephen Thwaites having failed to pay any of the instalments according to the arrangement for payment of the former rent, a distress was again put in, and the same goods seized for 81., being 71. unpaid on the first distress, and 11. for the rent which had accrued due. No further notice was given by the plaintiff, and the goods were subsequently sold for 5l. 11s. The first and most important question is whether this can be a trespass because there had been no notice under the Lodgers' Goods Protection Act, except that given on the 5th Sept, in consequence of the first distress. Looking at all the requirements of the Act I have come to the conclusion that the notice given on the 5th Sept. was not applicable to the second distress. I think it is necessary on a distress being made that notice should be given at the time applicable to that distress. The terms of the Act seem to me to be such as to make it reasonably clear that that is the law. By the first section, if any superior landlord shall levy a distress on any goods of a lodger for arrears of rent due to the superior landlord by his immediate tenant, the lodger may serve the superior landlord with a declaration in writing setting forth that the immediate tenant has no right of property or beneficial interest in the goods distrained, and that such goods are the property or in the lawful possession of the lodger. That is all in the present tense, and shows that the notice must be given when the distress is put in, or if not imme

diately after the seizure, a sufficiently short time before to prevent the possibility of any change in the right of property or possession of the goods. The same section then provides that the deciaration shall also set forth whether any and what rent is due, and for what period, from such lodger to his immediate landlord, and such lodger may pay to the superior landlord the rent, if any, so due, or as much as shall be sufficient to discharge the claim of the superior landlord. It further provides that to the declaration shall be annexed a corect inventory suscribed by the lodger of the goods referred to in the declaration; and if any lodger shall make or subscribe such declaration or inventory knowing the same or either of them to be untrue in any material particular, he shall be deemed guilty of a misdemeanour. The second clause is to this effect: "If any superior landlord or any bailiff or other person employed by him shall after being served with the before mentioned declaration and inventory, and after the lodger shall have paid or tendered to such superior landlord, bailiff, or other person, the rent, if any, which by the last preceding section such lodger is authorised to pay, shall levy or proceed with a distress on the furniture, goods, or chattels, of the lodger, such superior landlord, bailiff, or other person shall be deemed guilty of an illegal distress." I apprehend the words of that section do not warrant a lodger in referring to an inventory when the state of things may have been totally different. The declaration setting forth the particulars required by sect. 1 must be served on each occasion of a distress being levied or threatened, otherwise a superior landlord cannot be made liable as for an illegal distress under sect. 2. By reference to a notice given on the occasion of a prior distress, there should have been a fresh declaration made at the time the distress was levied on the 21st Sept., therefore the distress in this case was not illegal. But it is said here the distress was illegal, and an action for trespass will lie because a portion of the rent distrained for was the subject of a prior distress. No doubt when a landlord has once made a distress and has voluntarily abandoned it, he cannot again distrain in respect of the same rent, and to support this contention the case of Dawson v. Crop (ubi sup.) was relied upon. But the defendant did not voluntarily abandon the first distress. He was compelled to withdraw because of the notice which was given, and which prevented him from realizing under the distress. The learned judge at the trial ruled that as the second distress had been levied for the same amount as the first distress it was illegal within the Act, if the jury thought the plaintiff was a lodger, and that the defendant had withdrawn after notice. He appears to have held that although 11. additional rent had accrued due since the first distress, the mere fact that the landlord had also distrained for the 71. which was due for the former rent gave the plaintiff a canse of action. In so ruling I think he decided contrary to the cases which decide that distraining for a larger amount of rent than is actually due does not per se give a cause of action, and it is necessary to prove special damage. Here there was no evidence of special damage, and therefore it was a misdirection. The landlord withdrew partly because his immediate tenant entered into an agreement to pay 11. down and the balance by instalments, and partly on account of the decla

[Q.B. DIV.

ration made by the plaintiff under the Lodgers' Goods Protection Act. He did not voluntarily abandon the first distress. The rent distrained for was due, and there was nothing to prevent him from exercising his right to distrain. I have therefore come to the conclusion that this action is not well founded, and that judgment must be entered for the defendants.

The

MANISTY, J.-There are two principal questions in this case, and no doubt it is a case of some general importance. These two questions are first whether the distress was as between the superior landlord and the immediate landlord of the plaintiff an irregular distress, and secondly, assuming it to be a distress as between those two, for which no action will lie, will the fact that the plaintiff was a lodger when the present distress was made enable her to maintain an action ? On the 1st Sept. there was a sum of 81. due for rent, and Wilding, the superior landlord distrained. The plaintiff gave notice under the Lodgers' Goods Protection Act, and the distress came to an end, not by a voluntary withdrawal, but by an arrangement with Thwaites, the immediate tenant. tenant did not perform his part of the agreement, and therefore as between him and the superior landlord there was a right to enter. The cases of Dawson v. Crop (1 C. B. 961) and Bagge v. Mawby (8 Ex. 641) seem to me to establish that if by an arrangement made a part only of the rent is paid, the landlord has a right to enter and make another distress. Although the second distress was for the same amount it was not all for the same rent owing to the fact that some rent had accrued due since the first distress was made. At all events the landlord had a right to distrain for 11. The statement of claim alleges that the defendant broke into and entered the plaintiff's dwelling-house and rooms and wrongfully distrained therein her goods as a distress for arrears of rent due from her immediate landlord to the superior landlord and converted them. Then paragraph 4 says, that after the distress the defendants had notice under the statute that the plaintiff was a lodger, and no rent was due from her, and that there was annexed to such notice an inventory subscribed by her in every respect as required by statute, nevertheless the defendants proceeded with such distress on the goods of the plaintiff. That is not correct, and if the plaintiff had stated the real facts, viz., that a distress was levied on the 1st Sept., that it had been abandoned by arrangement, and that a second distress was put in on the 21st Sept., partly for the same, and partly for additional rent, without showing that any notice or declaration under the Lodgers' Goods Protection Act, the question would have been raised on the pleadings, and the statement of claim would have been bad. If the plaintiff had given on the second occasion a notice and inventory, as she did on the first she would have brought herself within the Lodgers' Goods Protection Act. But there might have been a change of property in the goods between the 1st and the 21st Sept. It is not a matter of form only but a matter of substance. If the lodger cannot truly declare that the goods distrained were his goods at the time of his distress, and that his immediate landlord has no right of property in them, why should the superior landlord be deprived of his common law right of distress? The plaintiff has not shown that she gave a proper notice under the statute after the

In a case of salvage the Court, having out of the proceeds of ship and cargo, amounting to 6081., awarded one-half to the salvors of property, awarded 150l. to life salvors taking off the crew, together with costs to both plaintiffs.

AGAINST the Dutch schooner Anna Helena two actions were instituted, one for salvage of ship and cargo by the owners, master, and crew of the smack John Ellis, the other for life salvage by the owners, master, and crew of the fishing smack Lusty.

On the 6th Dec. 1882 the fishing smack Lusty, 84 tons register and of the value of 14501., was lying to about 180 miles N.E. by E. from Spurn, when those on board her, at about 1.30 p.m., sighted the schooner Anna Helena flying signals of distress. On coming up with the Anna Helena, she was found to be waterlogged, and in a position of great danger. Her crew at once asked to be taken off. Notwithstanding the heavy sea and bad weather, the salvors at once put out their boat, which after much risk succeeded in bringing off the crew of the Anna Helena. Efforts were then made to save the vessel, but she was lost sight of in a snowstorm. The crew of the Anna Helena were much exhausted from cold, exposure, and want of food. On the morning of the 7th Dec. one of the salvors was washed overboard and lost. The crew of the Anna Helena at their request were taken to Hull. The services lasted from the 6th Dec., 1.30 p.m. till the 9th Dec. 5 a.m. and were rendered during very severe weather. By reason of the services the Lusty lost her fishing.

The Anna Helena was eventually picked up by the smack John Ellis, and after a service of about six days was brought into Shields.

On the 3rd Feb. the life salvors commenced an action in the County Court of Northumberland, holden at Newcastle, but, before any steps were taken, the Anna Helena was arrested under the warrant of the High Court in a salvage action by the salvors of the ship and cargo, and thereupon upon application an order was made by the judge of the High Court to transfer the action to the High Court.

In the action for salvage of ship and cargo on behalf of the John Ellis the Anna Helena was sold and the gross proceeds of sale amounted to 6087., without deducting any marshal's or other expenses.

On the 12th June the action on behalf of the property salvors came on for hearing.

J. P. Aspinall, for the plaintiffs, stated the facts. (a) Reported by J. P. ASPINALL and F. W. RAIKES, Esqrs.,

Brrristers-at-Law.

[ADM.

Sir J. HANNEN.--I have read the pleadings and the affidavit. The value is small, but the services were rendered at some risk, and it is a case in which I think that half the value should be allowed. I award 3041. and costs.

June 26.-The life salvage action now came on for hearing as an undefended action.

It appeared that the marshal's expenses in the action were about 100l., and the plaintiffs' costs in the property salvage action about 601., so that the sum of 4641. was, as matters then stood, payable out of the fund in court.

W. G. F. Phillimore, for the life salvors, submitted that the life salvors were entitled to a

substantial reward, and that, as the life salvors were entitled to precedence, it ought to be given without reference to the award to the property salvors.

J. P. Aspinall, for the property salvors, submitted that there was enough to pay the life salvors for the services and costs without affecting the award to the property salvors, and that the award ought not to be such as would affect the property salvors' right.

The court was referred to the following cases:
The Cargo ex Fusilier, 2 Mar. Law Cas. O. S. 177;
12 L. T. Rep. N. S. 186; Br. & L. 341;
The Cargo ex Schiller, 3 Asp. Mar. Law Cas. 226;
35 L. T. Rep. N. S. 97; 1 P. Div. 473;
The Cairo, 2 Asp. Mar. Law Cas. 257; L. R. 4
Ad. & E. 184; 30 L. T. Rep. N. S. 535;
The Coromandel, Swa. 205.

Sir JAMES HANNEN.-In a salvage case, recently before me (The Argonaut, June 19, 1883) it may be that I used a hasty expression implying that in the case of a derelict, the rule is to give salvors one-half, and my judgment in favour of the property salvors here might confirm that impression. However, I had no intention of so laying down a general rule. Each case must depend upon its own circumstances. Where values are small and services great, it may be proper to give half, and these circumstances existed in these cases. In this case I certainly think if I had known of this present claim I would not have given the property salvors a moiety. In this case the services are highly meritorious. It is impossible to lay down any general rule in salvage actions, but I think I do justice by allowing 1501. and costs, in which sum the personal representatives of the salvor who lost his life are to share.

Solicitors for the life salvors, Brooks, Jenkins, and Co.

Solicitors for the property salvors, Clarkson, Greenwell, and Wyles.