so as not to be a loser. Now, it seems to me that precisely the same reasoning would apply to this case if, without imposing any obligation, the testator had strongly expressed his desire that a particular charge should be incurred. If the testator makes a devise of land, without binding the devisee by any conditions, but requesting that certain payments may be made, the inference would be that he intended to give the inheritance in the land, so that the object of his bounty might comply with the moral obligation. In this view of the case, I think that it is unnecessary for us to decide whether this will creates a binding trust to be enforced in equity, or merely expresses a wish which is not obligatory. In either case, according to the principle of decided cases, there would be evidence of an intention that the executrix should have the inheritance. The rule will be made absolute to enter the verdict for the defendants. MELLOR, J.-I am of the same opinion. I think that we see in the words of the will a clear intention on the part of the testator that his wife should take an estate in fee. Mr. Mellish, indeed, so far succeeded in his argument as to shew that it would be extremely unsafe, notwithstanding some expressions in the decided cases, to hold that the words as touching such worldly estate are sufficiently brought down into the devise so as to carry the fee. I think also, that he succeeded in shewing that the other words, "to be freely possessed and enjoyed," are not sufficient. But it is not enough to shew that one portion of the will, taken by itself, is insufficient, and that another portion is also insufficient. The arguments must be based upon the words of the whole will taken together, and I think that Mr. Williams is quite right in saying that though the words to which I have alluded may not by themselves suffice, yet that they assist us in coming to a conclusion as to the meaning of the last clause upon which he relied. I quite agree with my Brother Blackburn in feeling considerable doubt as to whether this will creates an equitable obligation which a Court of equity would enforce. At the same time, if we were called upon to decide the question, it seems to me that the authorities cited against the obligation may either be distinguished, or admit us to decide (looking at the words which precede and follow the devise) that it was the intention of the testator that his children should be educated and settled in business, and that the mode of carrying out his intention should be left to the discretion of his wife, though with no power on her part to decline the trust. For if it were left at her option to educate the children or not, the word "discretion" need not have been used in the will. And I also agree with my Brother Blackburn. that the principle by which words imposing a charge on the estate are used as evidence of the intention of the testator, applies also to a mere recommendation to the wife that she should exercise that discretion with regard to her children. which a husband might reasonably expect. In either case the quantity of the estate of the devisee would be material, since it would be absurd to express a hope that the devisee would incur expenses unless the estate bore some proportion to the object contemplated; and the testator must be supposed to have intended that his wife should take what would reasonably enable her to carry out the objects which he had in view. I think, therefore, that the defendants are clearly entitled to judgment. SHEE, J.-I am of the same opinion. The clear result of the cases cited in the course of the argument is, that words shewing an intention to convey the whole quantity of the testator's interest in a particular estate may be sufficient to carry the fee, though no words of inheritance be used. The words of this will, independently of any construction, legal or equitable, which has been previously put upon such words, shew an intention on the part of the testator to give the whole of his estate, real and personal, to his wife, to be by her freely possessed and enjoyed. If the will had contained nothing more I should have had some difficulty in coming to the conclusion that the wife took more than a life estate, for the words, as touching such worldly estate wherewith it hath pleased God to bless me," are not incorporated with the devising part of the will. But the intention of the testator is made apparent by his direction, and it seems to me of little moment whether this direction is the mere 66 expression of a wish, or creates a trust, that his wife should enjoy the real estate in a way consistent with his and her moral duty to their children, not merely to their nurture in childhood, which, in a vast majority of cases, would in no way derogate from the full and free enjoyment of the estate by the widow, but subject to an outlay on their account for their education and settlement in business, which would probably be payable out of her income from the estate during her life. There can be little doubt, therefore, that he meant to give to his wife such an estate as would, at the cost to herself of some diminution of her estate, secure the object of educating and settling her children in life. It has been argued that the words "at her discretion import that the executrix should have the discretion of disposing of the estate in any way that she might think proper. But it seems to me that, coupling these words with the rest of the will, the right construction to be put upon them is that suggested by my Brother Mellor, and that they apply rather to the mode of educating and settling the children than to an absolute discretion on the part of the wife to dispose of the estate as she might think proper, without reference to the interests of the children. The rule must be made absolute. Rule absolute. [IN THE QUEEN'S BENCH.] June 13, 1866. HIBBS. v. ROSS. 35 L. J. Q.B. 193; L. R. 1 Q.B. 534; 7 B. & S. 655; 15 L. T. 67; Applied, The Troubadour, 1866, L. R. 1 A. & E. 302; 16 L. T. 156 (Adm.); Wear Evidence-Negligence-Shipkeeper-Action against Registered Owner. SHIPPING. A ship, of which the defendant was the registered owner, was lying in a dock under the care of a shipkeeper. One of the hatchways was left by the negligence of that person, and the plaintiff, who was lawfully passing across the ship, fell down the hatchway and was injured. He brought an action against the defendant. At the trial, it was proved and found by the jury that the injury was occasioned by the negligence of the shipkeeper, but the only evidence to fix the defendant was the proof of the register, in which he was described as owner":—Held, by Blackburn, J., and Lush, J. (Mellor, J. dissentiente), that this was evidence to be left to the jury, and would have justified them in finding that in fact the defendant had employed the shipkeeper. The declaration alleged that the defendant was possessed of a vessel called the Jarnia, lying in the Surrey Dock, and that the plaintiff, being the master of an other ship lying alongside, was entitled to pass over and across the deck of the Jarnia to get to his own ship, and that the defendant improperly removed the hatches from one of the hatchways, and allowed them to remain off after dark, whereby the plaintiff, having occasion to cross over, fell down the hatchway and was injured. The defendant pleaded, among other pleas, not guilty. At the trial, which took place before Mellor, J., at the London Sittings after Trinity Term, 1865, it appeared that the ship had been lying in the Surrey Dock for some considerable time under the care of a shipkeeper. The plaintiff had occasion to pass across the ship, in order to get to his own vessel, which lay on the other side of her. In doing so, he fell down an unsecured hatchway and sustained some injury. The register was produced, and it appeared therefrom that the defendant was the registered owner, but there was no other evidence to fix him with liability. The learned Judge thought that this evidence was not sufficient, but he left to the jury the questions as to the fact of negligence and of contributory negligence, and a verdict was found for the plaintiff. Leave was given to the defendant to move for a rule to shew cause why a nonsuit should not be entered. Subsequently a rule was obtained by Brett, against which Bush Cooper (Kenealy with him) shewed cause (Jan. 13).—The presumption of law, in the absence of direct evidence, is that a keeper in charge of a chattel which cannot be carried about the person, is the servant of the owner of the chattel, just as the driver of a hackney carriage is considered to be the owner's servant. Under the old Hackney Carriage Act, the owner's name must be on the vehicle. In the present case, there being no evidence as to who appointed the shipkeeper, the owner must be held liable for the negligence, unless the presumption that the owner is the master of the shipkeeper is rebutted. In an action against the owner for breach of contract, it might be necessary to give further evidence of agency; but in actions of tort, of which this is one, all the avenues of information are closed against a plaintiff, and such actions could not be sustained if direct evidence were required. [BLACKBURN, J.-For all that appears, the keeper might be the servant of the broker to sell the ship.] It was clearly part of his duty to keep the ship free from danger to persons coming on board; but in fact he kept the hatchway open during the night, although it was always covered by day. By the Piers and Dock Act, lights are prohibited at night. Cox v. Reed (Ry. & M. 199) is stronger than the present case; for there it was laid down that a registered owner is prima facie liable for the repairs of his ship, until that presumption is rebutted: see also Fletcher v. Reid (Ibid. 202). Frost v. Oliver (2 El. & B. 301; s. c. 22 Law J. Rep. (N.s.) Q.B. 353) is also in the plaintiff's favour.-He also referred to Mitcheson v. Oliver (5 Ibid. 419; s. c. 25 Law J. Rep. (N.s.) Q.B. 39). Brett (May 7), in support of the rule.-This is a most important question, and comes to this is the mere production of the register sufficient to fix the defendant as the employer of the shipkeeper? It is much the same question as whether the owner of a ship is liable in respect of necessaries ordered by a person on board, though in such a case it would be enough to shew that the person ordering the goods was the agent of the owner, while here it is necessary to shew that the shipkeeper was the servant of the defendant. It often happens that the registered owner is not the beneficial owner, or the owner who nominated the master. There is this additional peculiarity in the present case, that the ship has been laid up in dock for some considerable time, so that it may well be that the shipkeeper was employed by the dock company or by the broker, and that the defendant had nothing to do with him at all. [BLACKBURN, J.--But the registered owner is prima facie the beneficial owner, and inasmuch as the truth of the matter is almost exclusively in the knowledge of the defendant, is he not bound to rebut the presumption that he employed the shipkeeper? LUSH, J.--May it not be carried so far as that the registered owner should be presumed to be in possession of that which is his own?] No; it is submitted that those presumptions do not fairly arise from the mere fact of the defendant being the registered owner. [MELLOR, J.-The plaintiff ought to shew that the shipkeeper was the servant of the defendant, before he can properly call upon him at all.] Yes; and the case may be likened to a case where a man is seen digging a hole in a field, and injury is occasioned by such hole to another person. Could an action be maintained against the owner of the field on the mere proof that he was the owner? The legal owner may be a mere trustee. In Hackwood v. Lyall (17 Com. B. Rep. 124; s. c. 25 Law J. Rep. (N.s.) C.P. 44 n.), which was an action for repairs done to a vessel of which the defendant was the registered owner of forty-eight sixty-fourths, Mr. Justice Cresswell said, The question is, whether the captain has power to make contracts to charge any person whose name appears on the register as owner. At one time the register was considered to be conclusive evidence of ownership, in an action for repairs or for necessaries supplied to a ship. Now, it is not considered even prima facie evidence." And Jervis, C.J., said, The Register Acts, are mere matter of fiscal regulation.' [BLACKBURN, J.-The observation of Mr. Justice Cresswell is a mere dictum thrown out arguendo.] He also referred to and discussed Frost v. Oliver (2 El. & B. 301; s. c. 22 Law J. Rep. (N.S.) Q.B. 353) and Mitcheson v. Oliver (5 Ibid. 419; s.c. 25 Law J. Rep. (N.s.) Q.B. 39). Cur. adv. vult. On the 13th of June the following judgments were delivered. MELLOR, J.-In this case the defendant is sought to be made responsible for an accident which happened to the plaintiff in lawfully crossing a ship called the Jarnia, lying in the Surrey Dock, to get from another ship, called the Moulshi, lying alongside, to the quay. It must be taken for granted, upon the finding of the jury, that the accident was occasioned by the negligence of the shipkeeper of the Jarnia, which ship was then, and had been for some time, laid up in the dock for the winter. The only evidence to fix the defendant with liability, was the proof of the register, in which he was described as owner. There being no other evidence, I was of opinion that the registry of ownership, without more, was insufficient for that purpose; but I left questions as to the fact of negligence and of contributory negligence to the jury, who found their verdict for the plaintiff, and assessed the damages at 4501.; and I therefore reserved leave for the defendant to move to enter a nonsuit, in case the Court should be of opinion that there was not sufficient evidence for me to leave to the jury to entitle them to find for the plaintiff. A rule to set aside that verdict and to enter a nonsuit, pursuant to the leave reserved, was obtained by Mr. Brett, and the question now arises, whether the mere proof that the defendant was the registered owner of the ship, is prima facie sufficient to fix him with liability for the negligence of the shipkeeper. I retain the opinion which I formed at the trial, viz., that such evidence alone was not enough to submit to the jury, to support the allegation in the declaration, that "the defendant negligently removed, the hatches, whereby the accident complained of happened.' In order to make the defendant liable, it was incumbent on the plaintiff, upon whom the burden of proof rested, to shew affirmatively that the shipkeeper was the defendant's servant. This depends upon the ordinary principles of law, applicable to the case of master and servant, and is not embarrassed by considerations arising out of the peculiar relation which the captain of a ship in general bears to the owner, and upon which the liability of the owner of a ship for repairs done to it, or for necessaries supplied to it, by the captain's orders, may depend. Even in that case it would appear to be incumbent upon the plaintiff, who seeks to render an owner liable, to shew affirmatively that the master who gave the orders was the master appointed by or sanctioned by the owner, so as to make him in the particular case his master "-Mitcheson v. Oliver (5 Ibid. 419; s. c. 25 Law J. Rep. (N.S.) Q.B. 39). As was said by Mr. Justice Erle, in Frost v. Oliver (2 El. & B. 301; s. c. 22 Law J. Rep. (N.S.) Q.B. 353), "The doctrine that the legal ownership of the ship is proof that the master has authority to contract for such owner has been repeatedly negatived." That is a material circumstance, as a step to proof, is undoubted, and, coupled with evidence that the repairs were done for the benefit of the ship, or the stores were supplied for its use, may in general be a sufficient prima facie case to call for evidence by way of explanation or answer; but I apprehend that the present case differs materially from that. Here the registry is the only evidence, and I cannot perceive that the single fact of ownership raises a presumption that the man in charge of the ship was the servant of the owner or appointed by him. And unless there is a presumption of fact, arising out of the mere ownership of the ship, to that effect, the rule to enter a nonsuit ought to be made absolute. The ship was not in the course of navigation, and there was absolutely nothing to shew that the owner ever came near the ship, or knew that it was in the dock. Whether the ship was in the possession of the owner, or of a mortgagee, or of the dock authorities, or of a broker, or of any other person, did not appear. In the case of Mitcheson v. Oliver Mr. Baron Parke, in delivering the judgment of the Court of Exchequer Chamber (5 El. & B. 445-6),--says, in remarking upon a passage of Lord Campbell's summing-up, in which he had put it to the jury "whether upon the evidence on both sides they were of opinion that the defendant had authorized the goods and work to be supplied and done on his credit," &c. No doubt if the jury disbelieved the parts of the case that made for the defendant, and drew the prima facie inference from the ownership and other facts, there was evidence on which they might find that Thompson was in fact master for the defendant." It appears to be clear, I think, that Mr. Baron Parke did not consider that the mere fact of ownership, without "the other facts," would have afforded even prima facie evidence that Thompson was the defendant's master. The action was for ordinary repairs done to the ship and for goods supplied to it, upon the orders of the registered master, and there were other circumstances tending to raise an inference as to the liability of the defendant; but it never appears to have been contended by the counsel, or suggested by any of the Judges, that the registry alone would have been sufficient proof that the captain was the captain of the owner so as to bind him. However this may be, in the case of repairs done to a ship, or stores supplied to it, for the apparent benefit of the owner, the same reason does not apply to the present case. I think that it would be unduly shifting the burden of proof to call for an answer to the mere fact of ownership; and I cannot see why any presumption should be made which would dispense with the necessity of further proof. Possession may be presumptive evidence of title; but the converse does not necessarily hold, viz., that title is presumptive evidence of possession. It is obvious that in the case of things which are constantly the subject of demise. charter, mortgage or the like, the presumption that the actual possession is in the owner cannot but be weak, and is not to be classed with those strong presumptions which shift the burden of proof from a plaintiff to a defendant. There exists an exception to the general rule that a party who alleges a matter must prove it in cases in which the subject-matter of the allegation lies peculiarly within the knowledge of one of the parties. In this case there is no peculiar knowledge on the part of the defendant within the meaning of that maxim. In one sense, in almost every case, the defendant has peculiar knowledge affecting his relation to the act complained of, but that is not the knowledge referred to. Here the shipkeeper could have proved by whom he was appointed, and so have laid a good foundation for the plaintiff's case, if appointed by the defendant. Why should the burden of proof shift in such a state of things in order to compel a defendant to disprove that which it was incumbent upon the plaintiff to prove? I am not aware of any case in which such evidence has been held sufficient, and I think that all experience at Nisi Prius is against it. For these reasons, I am of opinion that this rule should be made absolute; but as a majority of the Court is of a different opinion, the rule will of course be discharged. BLACKBURN, J.-In this case, tried before my Brother Mellor, it appeared that the plaintiff was lawfully passing over a ship then lying in dock under the charge of a shipkeeper, in order to reach his own vessel, which lay on the other side. In so doing he fell through an unsecured hatchway, and sustained considerable injury. There was evidence proper to be left to the jury, that this accident was occasioned by the negligence of those having the charge of E. R. A. [1866]-VOL. 2 31 |