charter-party stipulated" the freight to be paid on unloading and right delivery of the cargo less advances, in cash, at current rate of exchange; one-half of the freight to be advanced by freighter's acceptance at three months on signing bills of lading; owner to insure the amount and deposit with charterer the policy, and to guarantee the same. M. accordingly gave his acceptance for the half freight, and a receipt on account of such freight as per charter-party was indorsed on the bill of lading, which bill of lading was signed by the captain and afterwards duly indorsed to the plaintiff for value. On the arrival of the ship at Alexandria, M. having in the mean time become insolvent, the master refused to deliver the cargo to the plaintiff unless the whole of the freight was paid or guaranteed, although the acceptance given by M. was not then due. A guaranty was then given by one B. for the plaintiff under protest, and the cargo was delivered, and B. being afterwards compelled to pay the amount of such guaranty on the dishonour of M.'s acceptance, the plaintiff repaid him:--Held, that the plaintiff was entitled to recover the half freight from the defendant, as during the currency of M.'s acceptance the defendant had no lien for it, and the refusal to deliver the cargo was therefore wrongful.

Appeal from the decision of the Court of Common Pleas on a SPECIAL CASE, stated without pleadings. The case is set out at length in the report below (34 Law J. Rep. (N.s.) Č.P. 268; s. c. 19 Com. B. Rep. N.S. 453).

The following summary of the facts is sufficient for the purpose of the question before the Court of Appeal.

On the 1st of October, 1863, Mr. De Mattos, of London, entered into a charter-party with the defendant, by which it was provided that the defendant's ship the Parthenon should proceed to Sunderland and there load a complete cargo, and therewith proceed to Alexandria, and there deliver the same on being paid freight at the rate, &c., "the freight to be paid on unloading and right delivery of the cargo, less advances, in cash, at current rate of exchange; one-half of the freight to be advanced by freighter's acceptance at three months on signing bills of lading; owner to insure the amount and deposit with charterer the club policy, and to guarantee the same."

In accordance with this charter-party, De Mattos shipped a cargo of coal, and the captain signed a bill of lading, by which the cargo was made deliverable at Alexandria unto order or charterer's assigns. On the bill of lading being signed, De Mattos gave his acceptance at three months for 3011. 178. 6d., which was half the amount of the freight, in favour of the defendant, and there was indorsed by the defendant's agent on the bill of lading the following," Received on account of the within freight 3011. 17s. 6d., as per charter-party.

The ship arrived at Alexandria on the 5th of January, 1864, De Mattos having in the mean time become insolvent. The plaintiff, who was an indorsee for value of the bill of lading, informed the captain that he was prepared to pay the balance of the freight due after deducting the 3011. 17s. 6d.; but the captain having learnt that De Mattos had suspended payment, refused to deliver the cargo unless he was paid the full amount of the freight without any deduction, or had a guarantie for the payment of the same, and he claimed a lien on the cargo for the full chartered freight. The acceptance so given by De Mattos did not become due until the 3rd of February, 1864, when it was dishonoured. On the 20th of January, 1864, Messrs. Barker & Co., at the plaintiff's request, gave the guarantie required, in order to procure a delivery of the cargo. The cargo was accordingly delivered to the plaintiff, and upon the dishonour of the acceptance Messrs. Barker were required by the captain to pay the amount of their guarantie, which they did by order of the plaintiff, who, however, protested against the same. The plaintiff having afterwards and before action repaid Barker & Co., the question was, whether he was entitled to recover from the defendant, the shipowner, the amount in dispute, viz., 301l. 178. 6d., the moiety of the freight. The Court below gave judgment for the plaintiff for that amount.

Lewers, for the appellant (the defendant below).-The question is, whether the captain had a right to claim a lien for the whole freight, and that depends on the construction of the charter-party. The Court below held, that the acceptance was given as a payment in advance of the freight; but it is submitted that such a construction cannot be reconciled with the clause in the charterparty respecting the owner's undertaking to insure the amount, for if such acceptance was taken as payment of the freight the owner to that extent would have no insurable interest. The acceptance was intended to be taken, not as a pre-payment but as a loan from the charterer. The case of Kerchner v. Venus (12 Moo. P.C. 361), relied on by the plaintiff in the argument below, only shews that where the shipowner has entered into a stipulation which is inconsistent with his lien he waives his claim for freight; but that is not the case here. Moreover, it is submitted that there was only a suspension of the right of lien by this advance of freight, supposing the acceptance to amount to such advance; and upon the insolvency of De Mattos, which took place when he executed the deed of composition (which deed has been held by a Court of error to be binding), the right of lien was revived. It was the same as if the bill had been dishonoured at maturity, and it therefore ceased to be an advance in respect of freight-In re the London, Birmingham and South Staffordshire Bank (34 Law J. Rep. (N.S.) Chanc. 418). Next, what, took place at Alexandria when the guarantie was given and paid must affect the amount of damages.

[POLLOCK, C.B.-There was before the actual dishonour of the acceptance a demand and refusal to deliver the cargo. We must deal with the facts as they were at that time. The defendant cannot put himself in a better position by reason of his having refused to do what at the time the demand was made he ought to have done.]

Mellish appeared for the respondent (the plaintiff below), but was not

heard.

POLLOCK, C.B.-We are all of opinion that the judgment of the Court below must be affirmed. The Court below, in an elaborate judgment of my Brother Willes, enters largely into the question as to the rights of the shipowner under the charter-party. I do not think it necessary for me to do more than say this, that it appears to me that the giving of this acceptance was not a loan, but a pre-payment, and so I think the receipt given on the bill of lading treats it. I think that, as the shipowner had put that receipt on the bill of lading and the latter had been transferred to the plaintiff bona fide and for value, the plaintiff was entitled to have a delivery of the cargo to him upon payment of the half freight only. A demand of the delivery of the cargo was made by the plaintiff and refused by the master on behalf of the shipowner, unless payment was made of the whole freight, including therefore that half of the freight which had been dealt with by the freighter and shipowner as paid beforehand. Now, I do not think that any matter which subsequently arose altered the rights of the parties at that time, and that the payment of more than the half freight which was made in order to get the cargo may be recovered back. The case has been stated without pleadings, and it is therefore unnecessary to consider whether the remedy ought to have been in the form of trover or for money had and received. In any case I consider it to be money which has been paid for the delivery of goods to which the plaintiff was entitled without being obliged to make such payment.

MARTIN, B.-I am of the same opinion; but I give my judgment on the ground that there was no lien on the cargo in respect of the insolvency of the acceptor of the bill and the probability of the bill being dishonoured. I think the cargo was the property of the plaintiff, and that he was entitled to the delivery of it on payment of half only of the freight.

CHANNELL, B.-I also concur in thinking that there was no lien.

BLACKBURN, J.-I am of opinion also that the judgment should be affirmed. I only wish to say that I do not desire to express any opinion whether this bill,

which was given by the charterer, was a pre-payment of part of the freight or an advance on account of it. If the ship and cargo had been lost the question would have arisen, but no such question has now arisen, and I am clearly of opinion that upon the construction of this charter-party the freight was to be paid on unloading less advances; and I cannot believe that whilst this bill, which had been accepted for half the freight, was current, it was intended that the shipowner should be paid in cash the whole of the freight. Therefore, so long as such bill was current there would be no lien for the whole freight, and as the ship arrived at Alexandria before the bill became due and was dishonoured, the master had no right to refuse the delivery of the cargo. MELLOR, J., PIGOTT, B. and LUSH, J. concurred.

Judgment affirmed.

[IN THE EXCHEQUER CHAMBER.]

(Appeal from the Court of Common Pleas.)

Feb. 5, 1866.

THE CITY OF DUBLIN STEAM PACKET COMPANY v.

THOMPSON.*

35 L. J. C.P. 198; 19 C.B. N.S. 553; 1 H. & R. 369; L. R. 1 C.P. 355; 15 L. T. 112; 14 W. R. 376.

See now Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 77 et seq; and Merchant Shipping Act, 1906 (6 Edw. VII. c. 48), s. 54.

Ship and Shipping--Measurement of Tonnage of Steamships-Merchant Shipping Act, 17 & 18 Vict. c. 104. ss. 23, 29.-Validity of Rules.

66

SHIPPING. With reference to regulating the mode of ascertaining the register tonnage of steamships, the 23rd section of the Merchant Shipping Act (17 & 18 Vict. c. 104), designated in the margin of the statute "Rule 3," provides that in every ship propelled by steam power an allowance shall be made for the space occupied by the propelling power, and that the amount so allowed shall be deducted from the gross tonnage of the ship, and states, such deduction shall be estimated as follows." The section then, under divisions marked (a) and (b), points out how this deduction is to be estimated, and, in doing so, directs, inter alia, that where the tonnage of the space occupied by the boilers and machinery is above 30 per cent. of the gross tonnage, and there is no agreement between the Commissioners of Customs and the owners, the deduction shall consist of the tonnage of the actual space so occupied, with the addition, in case of paddle-wheels, of one-half, and, in case of screws, of three-fourths of the tonnage of such space," and the measurement and use of such space shall be governed by the following rules," which are afterwards set out in that section. The 29th section empowers the Commissioners, with the approval of the Board of Trade, to make such modifications and alterations in the tonnage rules as may become necessary, in order to the more accurate and uniform application thereof, and the effectual carrying out of the principles of admeasurement therein adopted"-Held, that the divisions of section 23, marked (a) and (b), form no part of the tonnage rules which section 29. empowers the Commissioners of Customs to alter.

This was an appeal from the decision of the Court of Common Pleas, giving judgment for the plaintiffs upon a special case stated, without pleadings, for the

* Coram Pollock, C.B., Martin, B., Channell, B., Blackburn, J., Mellor, J., Pigott, B. and Lush, J.

[1866] opinion of that Court, and which is fully set out in the report below (19 Com. B. Rep. N.S. 553; s. c. 34 Law J. Rep. (N.S.) C.P. 316).

The question was as to the validity of certain rules made by the Commissioners of Customs, with the approval of the Board of Trade. The rules (which are given at length in the report of the case before the Court below) professed to be made in pursuance of the powers granted by the 29th section of the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104): With a view to the more accurate and uniform application of the principle of granting a certain allowance to steamers for their propelling powers, and to be "in lieu of the rules set forth in section 23. of the Merchant Shipping Act.'

The 29th section of that act empowers the Commissioners of Customs, with the approval of the Board of Trade, to make alterations in the tonnage rules prescribed by the act. The 23rd section, fully set forth in the report below, except that in the margin of the statute the section is called "Rule 3,” provides for the allowance which, in ascertaining the tonnage of steamships, is to be made for the space occupied by the propelling power and deducted from the gross tonnage, and in the parts of the section marked (a) and (b), it points out how such deduction is to be estimated, and such deduction, in the case of a vessel whose tonnage space solely occupied by boilers and machinery is above 30 per cent. of her gross tonnage (which was the case of the St. Colomba, the plaintiff's steamer), is to consist of the tonnage of the space actually occupied for the proper working of the boilers and machinery, with the addition, in the case of ships propelled with paddle-wheels, of one-half, and, in the case of ships propelled with screws, of three-fourths of the tonnage of such space, and the measurement and use of such space shall be governed by the following rules." Then follow in that section rules numbered (1), (2), (3), (4) and (5).

46

By the measurement of the tonnage of the St. Colomba, (which was a paddle-wheel steamer), made under the rules in question of the Commissioners of Customs, no such addition of one-half of the tonnage of the said space to the deduction allowed for the space occupied by the propelling power was made, as required by section 23.

The Solicitor General (Giffard and C. Pollock with him), for the appellant.The 21st, 22nd and 23rd sections of the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), are all tonnage rules. Section 21 is called in the margin Rule I. and it enacts that the tonnage, previously to the ship being registered, is to "be ascertained by the following rule, hereinafter called Rule I." Section 22, called in the margin Rule II., says that ships which cannot be measured by the rule above given shall be measured by the following rule, hereinafter called Rule II." Then comes section 23, and that in the margin is called "Rule III." It is submitted that the whole of that section is a tonnage rule, and can therefore be altered by the Commissioners of Customs, with the consent of the Board of Trade, under the authority of the 29th section. What are called rules in that 23rd section are, it is submitted, sub-rules of Rule III., and it is a mistake to suppose, as the Court below considered, that these sub-rules only are the rules to which the power to make the alteration in the tonnage rules given by section 29. is limited.

Bovill (Watkin Williams with him) appeared for the respondents, but was not called on.

POLLOCK, C.B.-We are all agreed that the judgment of the Court of Common Pleas should be affirmed. The substantial question is, whether the Commissioners of Customs, with the approval of the Board of Trade, may make the regulations which they have made. By the 29th section of the act they may, with such approval, make such modifications and alterations as from time to time become necessary in the tonnage rules hereby prescribed." Speaking for myself, I will observe that when an act is passed which apparently gives, as this does power to individuals (whether it be with or without the approval of the Board of Trade) to make alterations in what the act has prescribed, we

ought to look at the act with care, and endeavour so to ascertain the true sense of the language used in it, that while we give full effect to it we do not enable a private body to make an alteration in the statute which the legislature did not intend should be within such power. Now, on looking at the 23rd section of the act, it obviously consists of three parts, one part being represented by letter (a), and another part by letter (b), and those parts of the section direct the allowance which is to be made for the space occupied by machinery, and the manner in which it is to be made, and then they go on to say-" and the measurement and use of such space shall be governed by the following rules, that is to say," and then numbers 1, 2, 3, 4, and 5, are given, and I believe that there is nothing else in the act which can be called tonnage rules. Then section 29 enables the Commissioners of Customs, with the approval of the Board of Trade, to make such alterations as may be necessary in the tonnage rules. We think, therefore, that the portions of section 23. marked with the letters (a) and (b) are not amongst the rules, and that consequently the Commissioners of Customs have made these alterations ultra vires; and we agree with the Court of Common Pleas that the Commissioners had no power to deal with the provisions of section 23. in the way they have done by these rules.

MARTIN, B.-I think the case is clear; and I doubt whether the Commissioners of Customs meant by these rules to make any alteration in the allowances for the space occupied by the machinery. I think, however, that they clearly had only an authority to deal with the rules mentioned in the 23rd section, and not with those portions of that section which are marked (a) and (b), so that they had no power to deprive the owners of vessels of the allowance which is there given. I have little doubt that for large vessels it might be more beneficial for the admeasurement to be made according to these new rules, but for small vessels, such as that of the St. Colomba, they would tell much against them.

CHANNELL, B.-I concur in thinking that the judgment of the Court below should be affirmed.

BLACKBURN, J.-I am of the same opinion. The words at the end of the 29th section give power to the Commissioners of Customs, with the approval of the Board of Trade, to make alterations" in the tonnage rules hereby prescribed, in order to the more accurate and uniform application thereof, and the effectual carrying out of the principle of admeaseurement therein adopted." These latter words, I think, define what power was intended. The legislature says in substance, in (a) and (b) of section 23, that a space shall be allowed for the propelling power, with a percentage in addition thereto. Now I think the Commissioners of Customs, with the approval of the Board of Trade, have power to make regulations for measuring that space, but they have no power to cut off the percentage.

MELLOR, J., PIGOTT, B., and LUSH, J. concurred.

Judgment affirmed.

[IN THE COMMON PLEAS.]

Jan. 16, 18, 1886.

THOMAS v. WELCH AND OTHERS.

35 L. J. C.P. 200; L. R. 1 C.P. 192; 12 Jur. N.S. 316. Patent-Complete Specification not noticing all in the Provisional Specification-Limitation of Claim-Disclaimer striking out Claiming Clauses.

PATENT. The provisional specification of a patent for improvements in apparatus for sewing or stitching stated the improvements to consist, first, in