V. C. STUART'S COURT.

Malins and Cracknall, for the motion, cited Taylor v. Brown, 2 Bear. 180.

Craig and Pole, in opposition, referred to Levy v. Linds, 3 Meriv. 81.

The VICE-CHANCELLOR said it seemed to him that, after a demurrer to a bill for specific performance had been overruled, if the court were to allow an action to be brought by the defendant to recover a deposit, it would pursue a course which would be unjust to the litigating parties, and would stultify its own proceedings. It was said here, however, on behalf of the defendant, that the purchaser ought to be allowed to continue his action, not only against the auctioneer for recovery of his deposit, but in the alternative for damages for nonperformance of the contract. It would be monstrous if the action were allowed to proceed pending a suit in the court, and it would be equally injurious to the interests of the parties and derogatory to the court. The objection also had been supported by evidence to show very improper delay on the part of the plaintiff, time being of the essence of the contract. Now, it was very clear from the bill, that time was not of the essence of the contract, but that the question between the parties was of a very different nature. As to the question of delay and damages, if, on the rest of the suit in this court, the bill is dismissed on the strength of the defendant's case, the right of the defendant to proceed at law to recover the damages which he wishes to recover now is clear. But if at the hearing the bill is not dismissed, all right to damages is out of the question. When the court entertains jurisdiction in specific performance, it is not the course of the court to permit an action at law to proceed. There must be an order to restrain the proceedings at law.

Friday, May 25.

Re THISTLETHWAYTE'S TRUST, and Re THE TRUSTEE
RELIEF ACT 1847.

Will-Construction—“ Unmarried.”
Testator, by his will, gave to his daughter at her mother's
decease, if his said doughter should be then unmarried,
1000l. as an outfit, and to answer her immediate pur-
poses. The daughter married in her mother's life-
time:

Held, that the word "unmarried" does not necessarily mean never having been married; and the context showed that in this case it might apply as a description to a state of widowhood.

Thomas Thistlethwayte, late of Southwark-park, in the county of Southampton, Esq., by his will dated the 12th Aug. 1850, whereof he appointed John Guitton Henry Stanhope and the Rev. George Abbott to be the trustees and executors, amongst other bequests, gave to his wife in his said will named, 10007. as an outfit and to answer her immediate purposes. And to his daughter Grace Thistlethwayte, at her mother's decease, if his said daughter should be then unmarried, 10007. for the like purpose for which the said legacy was given to her said mother. And the said testator gave all the residue of his personal estate to his said trustees upon trust, after making such payments thereout as by the said will directed for the benefit of his daughters in equal shares. The testator died on the 14th Sept. 1850, leaving his said wife and his said daughter Grace Thistlethwayte him surviving.

V. C. STUART'S COURT.

the gift.] The authorities show that the word " nn-
married," when applied as part of a description of a
legatee, must, according to the context, be construed
to mean either the status of never having been married
or the status of widowhood. The context in this will
affords very material assistance in construing the
word "unmarried," because the legacy is given for a
particular purpose, that applies to the status of the
individual legatee; and looking at the terms of the
legacy to Mrs. Thistlethwayte, the purpose appears
to be one which, in the case of the daughter, might
equally require the money for the like purposes as
those which the testator said he intended to provide
for in the case of the mother, namely, "as an outfit,
and to answer her immediate purposes." I think it
very plain that if this lady, now married, should at
the time of her mother's death be a widow, and
therefore in a condition to contract another marriage,
she would be exactly in that condition which the
testator could not but have contemplated that his
wife might be, and which would therefore entitle her
to a similar outfit for immediate purposes. Upon the
context I think I am not justified in saying that
because the daughter has once been married, she may
not at the death of her mother be in a condition to
contract another marriage, and therefore not entitled
to this legacy. In the present case my mind is
perfectly satisfied that I am not justified in doing
what this petition prays for. The petition must
therefore be dismissed; the costs of all parties, as
between solicitor and client, to come out of the
residue.

V. C. STUART'S COURT.

death and failure of heirs of the body of any one or more of the issue of the said children, as well the original share or shares of him, her or them so dying, and of whom there shall be such a failure of heirs of the body as aforesaid, as also such share or shares as shall accrue to him or them, or his, her or their issue by virtue of this present clause, shall be in trust for the survivors and survivor and other or others of them, if more than one, in equal shares as tenants in common and not as joint tenants, and for the heirs of the body or respective bodies of such surviving issue. And for default of issue to inherit under the preceding limitations, in trust for such person or persons, for such uses, trusts, intents and purposes, &e., as the last survivor of the said children of my said niece, notwithstanding coverture, and whether she shall be sole or married, by any deed or instrument in writing, &c., or by her last will, testament or codicil thereto, &c. shall direct, limit or appoint, give or devise the same. And in default of any such limitation, appointment, gift or devise, and so far as the same shall not extend, I give and devise the same to my own right heirs for ever." The will also contained a devise of certain other lands of copyhold or leasehold tenure, to the same three trustees, and their heirs, executors, administrators and assigns, according to the tenure thereof, in trust to permit the same to be enjoyed, and the rents and profits thereof received and taken as those of the freehold estates were thereby given and deviserl.

The testatrix died on the 7th July 1839; her niece, Mary Carr, had two children living at her (the testatrix's) death, viz., the plaintiffs, Mary Ann the wife of Thomas Goulburne Parker, and Maria Hannah Carr. T. G. Parker, and Mary Ann his wife, had five children, infants, who were defendants.

The plaintiffs, T. G. Parker and Mary Ann his wife and Maria Hannah Carr, executed a disentailing deed dated the 27th May 1854, purporting to vest the fee-simple of the estates in a trustee and his heirs, as to one moiety, in trust as T. G. Parker and Mary Ann bis wife should appoint, and subject thereto, to the use of them for their joint lives, remainder to the use of all during their children and their heirs as tenants in common; and as to the other moiety, in trust for Maria Hannah Carr, her heirs and assigns for ever.

The bill prayed for a declaration that the plaintiffs, Mary Ann Parker and Maria Hannah Carr, took, in the freehold and copyhold estates under the will of the testatrix, joint estates for life with several inheritances in tail, and that they were then by virtue of the indenture entitled to the freehold hereditaments according to the uses thereof; and prayed that the defendants might be decreed to convey the freehold estates; and that it might be declared that the plaintiffs were tenants in tail of the accumulated rents and profits; and for an account of the acccumulations since the death of the testatrix.

Saturday, May 26. PARKER CLARK. Will-Construction-Estate tail-Rule in Shelley's case: Testatrix devised freehold lands to trustees and their heirs upon trust for all the children of her niece M. C. by her present or any future husband, who should be living at her (testatrix's) decease, for their lives in equal shares, and for the survivors and survivor of them during their, his, or her lives or life. And after the decease of the last survivor, then in trust for all and every lawful issue, male and female, of such of the children of her said niece as should be living at her decease as aforesaid, in equal shares as tenants in common, and the heirs of the body and respective bodies of all and every the issue of such children. The will then contained this clause: "And on the death and failure of heirs of the body of any one or more of the issue of the said children, as well the original share or shares of him, her or them so dying, and of whom there shall be such a failure of heirs of the body os aforesaid, as also such shure or shares as shall accrue to him, her or them, or his, her or their issue by virtue of this present clause, shall be in trust for the survivors and survivor and other or others of them, if more than one, as tenants in common, and for the heirs of the body or respective bodies of such surviving issue":" Held, that the children of M. C. were tenants fim life, with remainder to their issue in tail as purchasers. Mary Robinson, spinster, by her will dated the 3rd Oct. 1833, made the following devise: "I give and devise my freehold estates, farms, lands and tenements, at, &c. in the county of York, together with the appurtenances thereto belonging, unto Thomas Clark, John Wightman and James Audus, their heirs, executors, administrators and assigns, upon the trusts hereinafter expressed and declared concerning the same (that is to say), upon trust as to the rents, issues and profits of the said farms, lands and teneto be born of my niece Mary Carr, the wife of John Carr, Esq. by her present or any after taken husband, who shall be living at my decease, during their respective natural lives, in equal shares, and for the survivors and survivor of them during their, his or her lives or life. And I direct that the rents and profits of the said estates shall be retained by the said trustees and invested so as to accumulate at interest for the term of twenty-one years after my decease, and that after the determination of that period, the rents and profits afterwards accruing shall be for the equal benefit of the said children during their lives and the lives of the survivors and survivor of them. And as to the said accumulated fund at the expiration of the said term of twenty-one years, I direct that the same shall be laid out and applied at such time or times as the said trustees shall in their discretion think expedient, in a purchase or purchases of any lands, tenements or hereditaments in the county of York, which they, my said trustees, may think eligible, and which I direct shall be conveyed to the said trus tees, in trust as to the rents, issues and profits thereof, for the said children of my said niece during their lives, and for the survivors and survivor of them during their, his or her lives or life. And from and after the decease of the last survivor of the said children, then as to all the said hereinbefore devised estates, and also as to such purchased estates as aforesaid, in trust for all and every the lawful issue, The VICE-CHANCELLOR.-The rule in Shelley's male and female, of such of the children of my said case is of the highest importance, and is always to be niece now or hereafter to be born as shall be living at treated as a guiding principle of the law of real promy decease as aforesaid, in equal shares and propor-perty; and it ought in every case in which it properly tions as tenants in common and not as joint tenants, and the heirs of the body and respective bodies of all and every the issue of the said children. And on the

The trustees on the 25th Feb. 1852 paid into the bank, under the Trustee Relief Act 1847, and invested in the name of the Accountant-General, to an account entitled, "In the matter of the trust of the contingentments for all and every the children now or hereafter legacy of Grace Thistlethwayte, under the will of Thomas Thistlethwayte, the sum of 10007., being the amount of the above-mentioned legacy;" and there was at the time of the petition standing to the credit of this matter the sum of 10061. 58. 9d. Three per Cent. Consols., and the sum of 874. cash, being the dividends on such investment as aforesaid,

On 30th Jan. 1855 Grace Thistlethwayte intermarried with John Dowell Fitzgerald Grace; Mrs. Thistlethwayte, the mother, was still living. The trustees and executors of the will now presented a petition, stating that they were advised that, upon the marriage of Grace Thistlethwayte, the said legacy of 10007. fell into the testator's residuary personal estate; and praying that the above-mentioned sum of stock might be sold, and, after payment of costs, that the surplus might be paid to them, as the personal representatives of the testator upon the trusts of his will.

Malins and Freeling appeared in support of the petition.

Walker and H. R. Young, for Mrs. Grace, contended that there was nothing in the will to show that she would not be entitled to the 10007. as a contingent legacy in the event of her being living and a widow at her mother's death.

The caases cited were Hall v. Robertson, 2 Equity Rep. 15; Doe v. Rawding, 2 B. & Al. 449; Coventry v. Lord Lauderdale, 10 Jur. 793; Marples v. Bainbridge, 1 Madd. 590.

The VICE-CHANCELLOR.-The question is, whether, upon the construction of this will, if this lady should be a widow at the time of her mother's death, in that event she will be entitled to a sum of 10007. given in these terms:-[His Honour read the words of

Malins, J. Rudall and Kirkmann, for the plaintiffs, contended that they took an estate tail. The question was, whether the issue took as purchasers or not; or rather, whether the plaintiffs were tenants for life or not. There was a devise to the children of the niece living at testatrix's decease for their lives, and after the decease of the survivor to the issue in tail of such children. That would have been a joint estate for life in the children, with several remainders in tail. But the testatrix went on to say, "On the death and failure of heirs of the body of any of the issue, the share should accrue for the survivors in equal shares as tenants in common." The question here was, whether the testatrix's intention was not that these words of distribution should extend to all the issue, even the remotest; and if so, they must be rejected: (Dalzell v. Welch, 2 Sim. 319.) If they were to take as purchasers, to which of the issue were the words to apply? If all were to take per capita, it would be very inconvenient: (Leigh v. Norbury 13 Ves. 340; King V. Melling, 1 Vent. 225.) A devise to a person for life, and after his death to the issue of his body and heirs of the body of such issue, is an estate tail, unless there are subsequent words: (Roe v. Grew, 2 Wils. 322.) "Heirs of the body" of "issue" mean nothing at all: (Shaw v. Weigh, 2 Strange, 798; Burrison v. Harrison, 8 Seo. N. S. 862.) Then, as to the words of distribution; they must be rejected. Issue in tail cannot take as tenants in common: (Jessim v. Wright, 2 Bli. 1; Doe v. Harvey, 4 B. & C. 610; Tate v. Clarke, 1 Bear. 100; Frank v. Stovin, 3 East, 548; Jones v. Morgan, 1 Bro. C. C. 26; 1 Hargr. Law Tracts, 562, 577; Kinsey v. Collier, 11 East, 564; Fearne C. R. 191; Lees v. Mosley, 1 Y. & C. Exch. 589; case, 120; Right v. Creber, 5 B. & C. 866; Denn v. Puckey, 5 T. R. 223; Toller v. Attwood, 15 Q. B. 929.)

Elmsley and Prendergast, for the defendants, were not called upon.

Walker, J. V. Prior and Toller appeared for other parties.

applies to be rigidly adhered to. It is equally important that no attempt be made to endanger the existence of the rule by endeavouring to extend it to

V. c. WOOD'S COURT

I

QUEEN'S BENCH.

Common Law Courts.

COURT OF QUEEN'S BENCH.
Reported by ADAM BITTLESTON, JOHN THOMPSON, W.and T.
SAUNDERS, Esqrs., Barristers-at-Law.

Friday, June 1.
THOMPSON V. GILLESPIE.

Charter-party-Payment of freight-Seaworthiness-
Condition precedent.

cases to which it is not legitimately applicable.
In this case the testatrix, in substance, gave her
real estates to the children of a daughter for life, with
remainder to the issue of these children, and the
heirs of the body of such issue. If the case rested
there, it would be one for the application of the rule
in Shelley's case; but it does not rest there: for it
is one of those cases in which it is stated by
Fearne, the word "issue" is to be construed as a word
of limitation or purchase according to the intention to
be collected from the language of the testator.
find such language in this will as puts it beyond a
doubt in my mind that the word "issue" is here used
as a word of purchase. For I find, after giving es-
tates to the daughters for life, with remainder to their
issue, these words: "From and after the decease of
the last survivor of the said children, in trust for all
and every the lawful issue, male and female, of such of
the children of my said niece as shall be living at my
decease, in equal shares as tenants in common." These
are words in which it is perfectly plain that unless the
"issue" of daughters are treated as taking as purchasers,
the words are nonsensical and capable of no application.
The rule laid down by Fearne with reference to the
effect of superadded words, after words which are con- Held, upon demurrer, that the second plea was good,

By charter-party it was agreeed that the vessel, being
tight, staunch, &c., should proceed from, &c., to, &c.,
and that one-fourth of the freight should be paid in
advance on the ship having sailed, less 5 per cent. for

commission and insurance.

Plea 2-That the ship was not tight, staunch, &c., by
reason whereof she was wholly lost.
Plea 3-That the ship was sent to sea when she was not
fitted for the voyage, and that after she was sent to
sea the plaintiff wrongfully permitted the master to
leave and go ashore, and that she was sent without a
sufficient crew to navigate her, whereby she was
wholly lost:

but the third bad.

The vessel left the harbour and anchored in the roadstead
outside. At that time the master and mate had not
come on board; the shrouds and cables were not put
in proper condition for the voyage, and although the
cargo was on board, the master had not signed the
bills of lading. While the vessel was in the roadstead

she was lost in a storm:

QUEEN'S BENCH.

vessel had sailed pursuant to the charter-party, that the vessel had not so sailed, and that the issue should be found for the defendant. A rule, however, was afterwards obtained, pursuant to leave reserved, for entering the verdict for the plaintiff; and the question upon that rule was substantially the same as that upon the demurrer.

Monday, May 28.(a)—Watson and Manisty showed cause.-There was no sailing in this case within the meaning of the charter-party. The vessel left the harbour and went out into the roads, but not for the purpose of prosecuting the voyage. She was to wait there until her rigging was put right and her crew completed; and until that had been done, there was no intention to proceed upon the voyage. Many cases have decided that such a departure would not be a sailing within the meaning of a policy of insurance; and the same rule applies equally to the same expression in a charter-party. They referred to Ridsdale v. Newnham, 3 M. & S. 456; Lang v. Anderton, 3 B. & C. 495; Graham v. Barras, 5 B. & Ad. 1011; Pittegrew v. Pringle, 3 B. & Ad. 514; Roelandts v. Harrison, 9 Exch. Rep. 444; Van Baggen v. Baines, 9 Exch. 523.

cited are distinguishable. The expression is construed
strictly in policies of insurance, because the object is
to limit the liability of the underwriter; and there is
no reason for the same strictness with reference to
the same expression in a charter-party, where it is
inserted for the purpose of fixing the time at which
the first payment for taking the goods on board should
be made. Sailing for this purpose does not mean
sailing in a seaworthy state; but is sufficiently com-
plied with if the vessel departs without intention to
The two cases in the 9 Exch. Reports
turned upon the peculiar wording of the charter-par-
insurance. If the question of seaworthiness arise at
ties; and the other cases cited relate to policies of
all in this case, then it is enough that the vessel was
time in question: (per Parke, B. in Sadler v. Dixon,
8 M. & W. 895.)
Cur, adv. vult.

Knowles, Atherton, and Unthank, contrà.-The cases

strued as words of limitation, is stated at p. 183, in these terms:-"There may possibly be some cases where the superadded words of limitation may be admitted to control the preceding words 'heirs,' 'heirs male,' &c., though in the plural number; when such superadded words limit an estate of a different nature to such heirs, heirs male, &c. from that which the ancestor would take if the preceding words, 'heirs male,' &c. in those cases, were taken as words of limitation." That is with reference to the superaddition of the words, "heirs" or "heirs male." Now, these are technical words; but the word "issue" is not a technical word, but is to be treated as a word either of limitation or of purchase according to the testator's intention. If the words superadded to the word "issue" indicate the intention that the issue shall take as purchasers, fendant. A rule nisi was obtained to set aside the seaworthy for the situation in which she was at the

they will have a still stronger effect. This is a case of that kind, and I am bound by the declaration of this court, with reference to the rule in Shelley's case, to hold that the children of the daughters take by purchase.

Declaration that the children take as tenants for life.

Held, that the vessel had not sailed for her place of
destination pursuant to the charter-party.
several pleas and issues.
Action on charter-party for freight. There were
demurred to, and upon an issue "that the vessel did
Two of the pleas were
not sail for Constantinople, pursuant to the said
charter-party," the verdict was entered for the de-
verdict and enter it for the plaintiff.

The pleadings and facts will be found sufficiently
stated in the judgment.

Argument upon the demurrers.
Atherton in support of the demurrers.-As to the
second plea. Is this plea any answer to the action?
It is composed of two parts:-first, that the ship
was not tight, staunch and strong. This alone is not
sufficient, for nevertheless she might be in a condition
to fulfil the voyage. Secondly, and by reason thereof
the ship was lost. Does the second part make the
plea good? In order to be a bar to the action it
must appear that the damage arising from this de-
fect, which would undoubtedly furnish ground for a
cross-action, would equal the claim for freight in this
action. Does it appear from the plea that the loss of
the cargo is equivalent to the loss of the freight? It
may be greater or it may be less: (2 Wms. Saund.
150 b; Charles v. Altin, 15 C. B. 46.) Circuity of
action affords no ground for a plea in bar, unless the
claims are equivalent. [Lord CAMPBELL, C. J.-Are
you entitled to recover freight unless the vessel sailed
in a secure state? Circuity of action has nothing to
do with it.] On this record it must be taken that
ing of the charter-party. Then as to the third plea:
the ship sailed in a proper condition within the mean-

return.

JUDGMENT.

Lord CAMPBELL. C.J.-This was an action by the owners of a ship on a charter-party, whereby it was agreed between them and the defendant that the ship being tight, staunch, strong, and in every way fitted for the voyage, should at Sunderland load from the factors of the defendant a full cargo of coals, and being so loaded should therewith proceed to Constantinople for orders, and deliver the cargo there or at some port in the Black Sea, being paid freight on the quantity delivered at certain stipulated rates, onefourth of the freight to be advanced to the owner's agent in London on the ship having sailed, less 5 per cent. thereon for insurance, interest and commission. The declaration alleged that the defendant caused the ship to be loaded with a cargo of coals, and that the ship, being so loaded, sailed for Constantinople pursuant to the said charter-party; and that, although the plaintiff's had done everything to entitle them to the advance of one-fourth of the freight, amounting to the sum of 2147., the defendant had not paid the same or any part thereof to their agent in London. The second plea was, that the said ship was not, at the commencement of the said voyage, tight, voyage, and that by reason of the premises the said ship and the said cargo of coals were wholly lost. To before us, last Hilary term, the doctrine of circuity this plea there was a demurrrer. Upon the argument of action was relied on; but we do not think it ap

V. C. WOOD'S COURT. Reported by J. HENRY COOKE, Esq., Barrister-at-Law. Wednesday, May 30. JAMES v. HARDING. Practice-Chancery Amendment Act-Supplemental order after decree. A decree was made in a foreclosure suit, and afterwards the plaintiff assigned the mortgage debt and the benefit of the decree. The court, upon the application of the assignee, gave him the benefit of the decree by a supplemental order under the 52nd section of the 15 16 Vict. c. 86, but required him to bear the costs. This was a foreclosure suit, in which a decree had been pronounced in the ordinary form on the 2nd Dec. 1854. On the 13th Jan. following, Mr. James, the that incorporates the second plea, and sets up subse- staunch and strong, and in every way fitted for the plaintiff, executed a deed of that date, made between himself of the one part, and William Jones of the other part, whereby, after reciting the proceedings in the suit, he assigned to Jones the mortgage-debt and interest, and the benefit of the decree, and all principal moneys, interest and costs to be recovered and received thereunder. By the 52nd section of the Chancery Amendment Act, 15 & 16 Vict. c. 86, it is enacted that "upon any suit becoming abated by death, marriage, or otherwise, or defective by some change or transmission of interest or liability, it shall not be necessary to exhibit any bill of revivor or supplemental

bill in order to revive such suit, or the usual or necessary decree or order to carry on the proceedings; but an order to the effect of the usual order to revive or the usual supplemental decree may be obtained as of course upon an allegation of the abatement of the suit, or of the same having become defective, and of the change or transmission of interest or liability;" and then the order is to have the same effect as the old mode of proceeding would have had.

I

J. T. H. Humphrey supported the motion, citing Lowe v. Watson, 1 Sm. & Gif. 123, and Atkinson v. Parker, Weekly Law Rep. 1852-3, 50. The VICE-CHANCELLOR. The only difficulty I feel in making the order asked is as to the costs. am willing to make the order, but I feel that I ought not to permit any more costs to be fastened on the mortgagor by reason of the mortgagee having dealt with the mortgage, and the decree after it has been made. I make the order; but as this transmission of interest has taken place solely by the act of the original plaintiff, he must bear all the costs of it, and incident to the application now made.

quent neglect. This is clearly matter for a cross-
action only: (Havelock v. Geddes, 10 East. 555.)
regard to the contract and charter-party, it was the
Manisty, contrà.-As to the second plea. Having
intention that freight should be paid only if the ship
sailed in a fit state. If the vessel sailed in an un-
seaworthy state the freighter could not have the
benefit of any policy of insurance he might effect on
the goods: Mondel v. Steel, 8 M. & W. 858.) To
avoid circuity of action, the loss of cargo may be
11 Ad. & Ell. 216; Comnop v. Levy, 17 L. J. 125, Q.B.)
pleaded in bar in this action: (Walmsley v. Cooper,
If the second plea is successful, the other will become
unnecessary. The third plea, however, sets up a con-
dition precedent, which has been broken.

Atherton in reply.-The plea sets up not a con-
dition precedent, but an independent stipulation.
Argument upon the rule nisi.

Cur, adv. vult.

the harbour of Sunderland in an unseaworthy state,
At the trial it appeared that the vessel went outside
without her bill of lading signed, and was lost. (a)
both as respected her rigging and her crew, and
Under these circumstances Parke, B. held, upon a
traverse of the allegation in the declaration that the

owner for breach of the same charter-party in sending the
(a) There was a cross-action by the charterer against the
vessel to sea in an unseaworthy state, &c., whereby vessel
and cargo were lost. At the trial before Parke, B. at New-
castle, evidence was given in that action, that the vessel,
offing, and anchored there with her shrouds loose. At that
after being loaded in Sunderland Docks, went out into the
time the bill of lading was not signed, and the mate and two
of the crew were missing. The master went ashore in
search of them, and during his absence a storm arose, and
the vessel was lost. Some defect was also imparted to the
chain cable. A verdict was found for the plaintiff, and a
rule for a new trial, obtained on the ground that the verdict
was against the weight of evidence, was subsequently dis-
charged. In the other action for freight it was taken by
consent that the same evidence had been given.

plicable, for the reason stated, in Charles v. Atlin,

15 C. B. 46. We are of opinion, however, that this plea is a bar to the action, on the ground that it shows that the advance of freight had never become payable. Freight, generally speaking, is not payable destination; here, by special stipulation, one-fourth until the goods have been delivered at the port of of the amount was to be paid in advance on a certain event, namely, the ship having sailed from Sunderland for Constantinople in pursuance of the charterparty. The charter-party required that when she sailed she should be "tight, staunch and strong, and in every way fitted for the voyage." If she sailed on could not recover back; if she, having so sailed, should the voyage in a seaworthy condition the merchant was to advance one-fourth of the freight, which he afterwards be lost by the perils of the sea, without having delivered any part of her cargo, pro tanto the risk was transferred from the shipowner to the merchant, and the arrangement between them was that the amount to be advanced was to be insured by him, for insurance, interest and commission. By the as appears clearly from the deduction of 5 per cent. policy of insurance, the merchant was to be indemnified to the extent of the sum he was to advance; but he could not have the benefit of this indemnity unless seaworthy. He must be considered to have promised at the commencement of the voyage the ship was the ship sailed she was in such a condition as that a to pay one-fourth of the freight in advance, if when policy of insurance on the freight would attach, and enable him to recover the money back in the case of

(a) Before Lord Campbell, C.J., Coleridge and Crompton, JJ.

QUEEN'S BENCH.

For

QUEEN'S BENCH.

June 2 and 4.
PARSONS v. ALEXANDER.
Gaming-Billiards-Cheque.

Money won at the game of billiards cannot be recovered
by action.

The 8 & 9 Vict. c. 109, s. 18, "provided that this
enactment shall not apply to any subscription or con-
tribution, or agreement to subscribe or contribute
toward any plate, &c., or sum of money to be awarded
to the winner of any lawful game, sport," &c., does
not extend to the case of money won from one person
by another at the game of billiards. (a)
Action upon a cheque for 65l. 14s.; there were also
counts for money lent, money paid, and upon an
account stated.

Plea 3.-As to the counts upon the cheque, and upon
the account stated, that the cheque was given, and
the account stated for money won by the plaintiff
from the defendant by gaming at billiards.

QUEEN'S BENCH.

other prize according to the common understanding of that expression. The word "contribution " does not seem to me to extend the meaning; it is almost synonymous with "subscription;" but it is not necessary now to find fault with Balty v. Marriott, because it is consistent with our present decision. There the players had deposited their stakes with a stakeholder; and, according to that decision, the contribution of the players would necessarily be confined to money in pocket. But the construction now contended for would extend the proviso to every case of indefinite playing on credit; and would, in effect, make the proviso destroy the enactment. I am of opinion, therefore, that the evidence brings this case within the enacting part of sect. 18, and not within the proviso.

At the trial the facts in the third plea were proved, and the verdict entered for the defendant. A rule nisi having been obtained to enter up judg-game be lawful or unlawful; but the proviso is conment for the plaintiff on the third plea non obstante veredicto,

be maintained to recover any money won upon any
wager; provided that this enactment shall not apply
to any subscription or contribution or agreement to
subscribe or contribute for or toward any plate, &c.,
or sum of money to be awarded to the winner of any
lawful game, sport, pastime or exercise." This case
does not fall within the words contribution or sub-
scription in that proviso. (Cases cited:-Hay v. Hay-
ling, 16 Q. B. 425; Reg v. Kinnear, 2 Moo. & R. 117;
Bingham v. Stanley, 2 Q. B. 105; Hodson v. Terrell, 1
Car. & M. 797; Applegarth v. Colley, 10 M. & W. 723;
Bentinck v. Connop, 5 Q. B. 693; Varney v. Hickman,
5 C. B. 260; Batty v. Marriott, 5 C. B. 818; Johnson
v. Leasley, 12 C. B. 468.)

ERLE, J.-This action is brought to recover 681., money lost at billiards, by playing in the ordinary way. The defendant went to a public billiard-table with a few shillings in his pocket; and by continually increasing the stakes lost 681. The case therefore comes within the enactment of sect. 18, which renders void all contracts by way of gaming or wagering; and the plaintiff fails unless the proviso applies to this case. Was there " any subscription or contribution, or agreement to subscribe or contribute for or toward any plate, prize or sum of money to be awarded to the winner of any lawful game There was not; these parties neither contributed nor agreed to contribute any sum to be awarded to the winner. The statute contemplated either the payment of the money, or that the parties agreeing to contribute should at least hold themselves out as having the money ready to be paid as their contribution as soon as the game of skill is determined. Here, if the defendant had been called upon to pay his stake down at the time, he could not have done so; nor could he have properly entered into any agreement to contribute. This case is therefore well distinguished from that in the Common Pleas, where the stakes were deposited in the hands of a third person, and the prize was awarded to the winner. Nothing of the sort occurred here, and I may add that, in my opinion, the Legislature by this proviso never intended to protect a mere game at billiards, but had in contemplation a much wider subscription for a more important object.

a subsequent loss. But the plea avers that the ship was not seaworthy at the commencement of the voyage, and that by her unseaworthiness the cargo of coals was wholly lost. It was argued for the plaintiff that the loss after the sailing is for this purpose immaterial, and that, although unseaworthy when she sailed, she might have completed the voyage and delivered the coals in safety; in that case the full freight certainly would have been earned, and would have been payable; but still the conjuncture never would have arisen, on which alone part_of the freight was to be paid in advance. these reasons we think the second plea is sufficient. There is a third plea upon which, it being demurred to, we are bound to give our opinion. This plea has some introductory observations about the ship having been sent to sea in an unseaworthy state, COLERIDGE, J.-It is not disputed, I think, that but it contains no allegation to that effect; and the words of the enactment would include this case; we consider the substance and gist of the plea to be and the question is, whether the proviso takes it out that the ship sailed, and whilst she was on the high of the operation of the enactment. The enactment seas the plaintiffs were guilty of negligence and imextends to all gaming and wagering, whether the proper conduct with regard to the management of the ship, by reason whereof the ship and cargo fined to lawful games only; and I should have were wholly lost. This plea we think is bad, as it thought certainly that it was only intended to proadmits that the ship sailed on the voyage from Rowe and Taprell showed cause.-The third plea is tect the ordinary making up of stakes for the winner Sunderland in pursuance of the charter-party. If framed on the statute 9 Anne, c. 14, and under that to receive. The winner, however, may himself be a this be true, the one-fourth of the freight thereupon statute money won at gaming at billiards was not re-subscriber; and the list of subscribers may be reduced became payable in advance, and any subsequent de- coverable. That statute did not make the game to the two persons playing out the game; but still a fault or misconduct of the plaintiff would only be the illegal, but barred the recovery of money won at subscription or agreement to subscribe is essential in subject of a cross-action. We have now to consider gaming. Cricket, chess, bowls, and other games of order to bring the case within the proviso; and I the rule which was obtained to enter the verdict for skill or chance, have been held to be within the Statute think it would be an abuse of terms to say, when the plaintiff on the issue taken on the first plea, of Anne. That being so, how is the plea affected by parties are playing for money on credit, that they are "that the said ship did not sail for Constantinople the 8 & 9 Vict. c. 109, s. 18? Does the proviso at subscribing or agreeing to subscribe a common sum pursuant to the said charter-party." The learned the end of sect. 18 enable the plaintiff to recover? to be given to the winner. judge at the trial, thinking upon the evidence ad- That section enacts "that all contracts by way of duced that she did not sail for Constantinople pur-gaming or wagering shall be void, and no suit shall suant to the charter-party, directed the verdict to be entered for the defendant, reserving leave to move to enter the verdict for the plaintiffs. We entirely concur in the opinion expressed by the learned judge. When the loss happened the ship had left the harbour of Sunderland, but she had not commenced her voyage to Constantinople; her crew was not complete; the master and mate had not come on board; her shrouds and her cables had not been put in proper condition for the voyage; and, although the cargo was on board, the master had not signed the bills of lading; the vessel left the harbour with the intention that she should be anchored in the roadstead and lie there till the crew should be completed, the master and mate come on board, the shrouds and cables put in proper condition, and the bills of lading should be signed; there she was to prepare for the commencement of the voyage, because it was more convenient for these purposes that she should lie there than in the harbour. But, although she had left the harbour without the intention of returning thither, she had left with the intention of not commencing the voyage till the necessary preparations should be completed. There is no pretence for the suggestion thrown out in the end of the argument by Mr. Unthank, that she had commenced the voyage, and was driven back or stopped by something unforeseen. The intention, when she crossed the bar, unquestionably was that, being still unfit to proceed to sea, she should remain at anchor till the preparations for the voyage were completed; and before they were completed she was totally lost: under which circumstances can it be said she had sailed for Constantinople in pursuance of the charter-party? It was admitted that, according to Ridsdale v. Newnham, and several other cases to the same effect, she could not be said to have sailed within the meaning of the warranty in a policy of insurance that she should sail from Sunderland to Constantinople on or before the day on which she was lost. Why should the time of sailing, when, according to this charter-party, a portion of the freight was to become payable, be calculated on a different principle? According to the reasoning on which we gave our opinion as to the sufficiency of the second plea, it could not have been the meaning of the charter-party that a portion of the freight should be payable by the merchant, and should be at his risk at the time when the ship, though at sea, was unseaworthy, and was preparing for the voyage, as then a total loss happening, the policy of insurance for the freight would have yielded him no indemnity. The decision of the Court of Ex. in Roelandts v. Harrison, was on a similar clause in a charter-party, and it appears to us to be strongly in point. There the freight was made payable on the final sailing of the vessel from the port of lading; but where only one sailing from the port of lading is contemplated, we can see no difference between the sailing of the ship and the final sailing of the ship. The facts are stronger in the present case than in Roelandts v. Harrison, as the ship had not been sailing, and when the ship was wrecked she was only preparing for the sailing. The verdict on this issue must therefore stand for the defendant, and the rule must be discharged.

Judgment for defendant on rule to enter verdict, and demurrer to one plea; for plaintiff, on demurrer to another.

Collier in support of the rule.-The case is now reduced to this point, whether, to the count upon an account stated, the plea that the account was stated in respect of money won by gaming at billiards can be supported. The stat. 8 & 9 Vict. 109, s. 18, properly construed, applies only to wagers, and does not prevent the winner of stakes at a lawful game from recovering them from the loser. The enacting part of the clause is so limited by the proviso; and in Batty v. Marriott, 5 C. B. 818, the proviso was held to apply to money won at foot-race, although there were no subscribers to the prize but the runners. That was therefore in effect as much a wager upon the result as a game at billiards played for money is a wager upon the result; and that case is an express authority for the plaintiff.

Lord ČAMPBELL, C.J.—I am of opinion that the verdict ought to stand for the defendant. We are now to treat the record as containing a count upon an account stated with a plea, such as was here pleaded mutatis mutandis; and that plea found for the defendant. Then it seems to me that the plea is good; it is framed on the very words of sect. 18 of 8 & 9 Vict. c. 109: and the plaintiff cannot be entitled to judgment non obstante veredicto. The direction of the learned judge was also, in my opinion, quite correct, and there was abundant evidence to support the finding of the jury. When we look to the 18th section, it seems clearly to apply to bets made by the players at lawful games, they betting on the result. I have no doubt that billiards is a lawful game, as a foot-race is; but it is certain that there may be gaming at a lawful game. Here the evidence shows the money to have been lost by playing at billiards in the usual way, staking certain sums on successive games; and, according to the common understanding of all mankind, the money is lost and won by gaming, when it is so lost and won. Then, can the case be brought within the proviso to sect. 18? I think not. The enacting part includes all betting, gaming and wagering; it is not confined, as it seems to me, to wagers by the bystanders only, but applies also to bets and wagers by the players themselves; and, giving that construction, the proviso may be read consistently with it, as applying to cases where there is a subscription, or an agreement to subscribe for a prize to be awarded to the winner of the game. But for the case of Batty v. Marriott, I should have thought that the proviso applied only to cases where there was a subscription for a plate or (a) There was an objection on the part of the plaintiff that some of the money sought to be recovered was won at pool, at billiards, which is, in fact, money contributed by the several players and awarded to the winner of the game; but the Court said there was nothing before it to enable it to distinguish between pool and the ordinary game of billiards, and this point was therefore abandoned.

CROMPTON, J.-I have heard only the argument of Mr. Collier in this case; but I am quite satisfied that it falls within the enactment and not within the proviso. Even where the players put the money down, as in Batty v. Marriott, it seems to me very strong to say that that is a subscription or contribution within the meaning of the proviso; and although it may be difficult to draw the line so as to exclude a contribution by the two players only, I am clear that such a case was not within the intention of the Legislature. Rule discharged.

June 6 and 7. REG. v. THE CHURCHWARDENS, &c. OF ST. GEORGE THE MARTYR, SOUTHWARK. Poor-rate-Tolls-Private streets-Principle of rating. A hatch was put across two private streets, not repairable by the parishes in which they were, but by the owner of them, and payments received at the hatch for passing from the one street to the other. The collector was allowed a house and yard adjoining the hatch, and a salary:

Held, that the collector was assessable to the poor-rate, only in respect of the house and yard in his occupation; and that the owner of the property was assessable for the payments at the hatch, as profits from the land, to the several parishes in which the streets were, in proportion to the length thereof in such parishes. Appeal by W. R. Hobern to the Surrey Midsummer Quarter Sessions 1854, as the occupier of premises, the rateable value of which was assessed at 1007., and the amount of the rate at 57., against such rate and assessment made for the relief of the poor of the parish of St. George the Martyr, Southwark. The court of quarter sessions allowed the appeal.

The premises rated were described in the rate as a toll-house and gate, commonly known as the Halfpenny Hatch, and the ground on which the same extends, and which is used therewith, and the tolls and dues arising therefrom."

The hatch is a fence, containing foot and cart gateways, extending from the toll-house at the end of

-Entering suggestion to obtain execution against the husband.

Sect. 141 of the C. L. P. A. 1852 does not apply to the case of a judgment obtained against a wife dum sola, so as to authorise the plaintiff to suggest the marriage upon the record and issue execution against the husband.

record the marriage of the defendant, for the purpose Milward moved for leave to suggest upon the action is brought upon a warrant of attorney exeof obtaining execution against her husband. The cuted by the defendant; and judgment was signed 1852 provides that "the marriage of a woman plaintiff before the marriage. Now, sect. 141 of the C. L. P. A. or defendant shall not cause the action to abate, but judgment; and such judgment may be executed the action may, notwithstanding, be proceeded with to against the wife alone; or by suggestion, or by writ of revivor pursuant to this Act, judgment may be obtained against the husband J. and execution issue thereon," &c. and wife, judgment has been signed before the marriage. That section [CROMPTON, Independently of that Act, would sci. fa. lie against inapplicable, where wife dum sola? (a)] In Chitty's Archb. 859, a manuthe husband upon a judgment obtained against the script case of Walter v. White (K. B. 24 June 1829) is cited; and it appears that in that case the court, wife, gave the plaintiff leave to enter an appearance on an affidavit entitled as against both husband and for and enter up judgment against the husband and wife on a warrant of attorney executed by the wife dum sola; and the rule was made absolute in the first instance. [CROMPTON, J.-That case is not at all in point. Lord CAMPBELL, C.J.-I am afraid against both husband and wife.] that the only remedy is by an action on the judgment sect. 141 and other similar sections were introduced prevent the necessity of such useless expense, that It was in order to into the Procedure Act.

Lord CAMPBELL, C.J.-It seems that this could
it since.
not have been done before the recent statute; nor can
Rule refused.

Setting aside judgment on ground of mistake—Jurisdic-
CANNAN AND OTHERS v. REYNOLDS.
after satisfaction of a judgment by payment, the
tion-Amendment of particulars of demand,
court has jurisdiction to set it aside, for the purpose
of enab ing the plaintiff to correct a mistake in his
particulars of demand, the defendant being put into
the same position as if the mistake had not been made,
and the application being made within a reasonable
time: (Erie, J. dubitante.)

upon the defendant to show cause why the judgment This was a rule obtained by the plaintiffs, calling should not be at liberty to amend their particulars of for the plaintiff should not be set aside, and why they demand, and proceed with the action, upon payment of costs and repayment of the amount which they had received from the defendant in satisfaction of the judgment. judgment, for want of a plea, was signed in this action on the 16th Jan. last, and that the defendant It appeared from the affidavits that paid debt and costs on the 19th Jan. In May it was discovered that a sum of money had, by mistake, been omitted from the particulars of demand in this action, and the explanation given of that mistake fendant Reynolds and one Furnell sued jointly with was, that another action was pending against the dehim; and that the sum in question had been charged against the firm of Reynolds and Furnell, instead of against the present defendants, as it should have Reynolds and Furnell were paid on the 18th Jan.; and been. But the debt and costs in the action against the first application to set aside the judgment was made to Wightman, J., at chambers, in May.

tion could be sustained in any case, it is made too Hannen now showed cause.-Even if this applicalate in this; because three months have elapsed since the judgment was satisfied; but it is altogether contrary to principle, and could not be sustained in any case. It proceeds upon the assumption that the sum and that if a fresh action should be brought, the in question might have been recovered in this action; judgment recovered in this would be a bar: (Lord Bagot v. Williams, 3 B. & C. 235.). A judgment is of so high a nature, that at all events after satisfaction the matter decided by it cannot be re-opened, except upon the ground of fraud: (Wade v. Simeon, 13 [CROMPTON, J.-Is not mistake a ground for interM. & W. 647; Bligh v. Brewer, 3 Dowl. 266.) ference as well as fraud? Lord CAMPBELL, C. J. This court has frequently ordered judgments to be amended several terms after the signing. COLEpractice to set aside regular judgments even after RIDGE, J.-And at chambers it is the constant neglected to appear, terms of course being imposed execution, where by some mistake the defendant has opposite party. At chambers the application is made for the purpose of preventing any injustice to the by the defendant on the ground that the forms of (a) In the notes to Underhill v. Devereux, 2 Saund. 72 i, it is laid down that if judgment be recovered against a feme sole and she marry before execution, a sci, f. must be brought against husband and wife in order to execute the