MORRIS v.

BARRETT.

July 24.

Mr. Wyatt, in reply:

In Jackson v. Jackson, Lord ELDON held, under the circumstances of that case, that, though a joint tenancy was created by the will, yet the course of dealing between the parties had rendered it a tenancy in common. There are equally special circumstances in this case to induce the Court to come to the like conclusion.

On this day, the LORD CHIEF BARON expressed his opinion, that, as to the leasehold and personal estate which passed by the will of the father, William Barrett, the two sons remained joint tenants; but, that, as to all the after-purchased estates, they were tenants in common.

1813. Jan. 18.

Lord ELLENBOROUGH.

[3 Camp. 320]

[321]

CASES AT NISI PRIUS.

JOSEPH AND OTHERS v. KNOX (1).
(3 Camp. 320-322.)

A person who ships goods in an English port, as the agent of the owner of the goods resident abroad, and pays the freight for them, may maintain an action in his own name for not delivering them according to the bill of lading.

THIS was an action against the owner of a ship on a bill of lading signed by the master, for not carrying goods from London to Surinam.

The bill of lading stated that the goods were shipped by the plaintiffs; that they were to be delivered in Surinam to Levy Davids or his assigns; and that the freight was paid in London.

The goods consisted chiefly of butter, which the plaintiffs had received from Sussman and Polack of Amsterdam, to be forwarded to Levy Davids in Surinam, and which in an answer to a bill in equity they swore they believed to be his property.

Topping, for the defendant, insisted that this action could not be maintained by Joseph & Co., who had no interest in the goods. They were merely the conduit through which the goods were to be transmitted from Sussman and Polack at Amsterdam to Levy Davids at Surinam. The property being in Levy Davids, he alone was injured by the non-delivery of the goods, and he alone could sue to recover their value. It has often been decided that (1) Foll. in H. L., Dunlop v. Lambert (1839) 49 R. R. 143, 161 (6 Cl. & Fin. 600 626).

an action against a common carrier for the loss of goods must be brought by the purchaser who ought to receive them, and not by the vendor who has delivered them to the carrier (1). There, the vendor delivers them merely as the agent of the purchaser, and on that ground can maintain no action respecting them. What difference can it make that here the goods were to be conveyed on board a ship? The plaintiffs were still merely the agents of the real owner of the goods.

LORD ELLENBOROUGH :

I am of opinion that this action well lies. There is a privity of contract established between these parties by means of the bill of lading. That states that the goods were shipped by the plaintiffs, and that the freight for them was paid by the plaintiffs in London. To the plaintiffs, therefore, from whom the consideration moves, and to whom the promise is made, the defendant is liable. for the non-delivery of the goods. After such a bill of lading has been signed by his agent, he cannot say to the shippers they have no interest in the goods and are not damnified by his breach of contract. I think the plaintiffs are entitled to recover the value of the goods, and they will hold the sum recovered as trustees for the real owner (2).

It appeared that the ship in question was in the same fleet mentioned in the case of Van Omeron v. Dowick (3), and that the goods were sold at Grenada, exactly under the same circumstances.

Lord ELLENBOROUGH again laid down the same doctrine with regard to the authority of the master over the cargo, which was acquiesced in on the part of the defendant, and the plaintiffs had a verdict.

Garrow, S. G. Park, and Taddy, for the plaintiffs.

Topping and Campbell for the defendant.

(1) Dawes v. Peck, 4 R. R. 675 (8 T. R. 330); Dutton v. Solomonson, 7 R. R. 883 (3 Bos. & P. 582).

(2) But where the freight is not paid by the shipper, and the goods are stated in the bill of lading to be

shipped by order and on account of
the consignee, the action can only be
maintained by the latter: Brown v.
Hodgson, 2 Camp. 36.

(3) 11 R. R. 656 (2 Camp. 42).

1829. March 25.

PARKE, J. [Moo. & Mal. 341 ]

[ *342 ]

REX v. HODGES (1).

(Moody & Malkin, 341–344.)

In 7 & 8 Geo. IV. c. 29, s. 38, the words "adjoining any dwelling-house," import actual contact; and therefore ground separated from a house by a narrow walk, and paling with a gate in it, is not within their meaning.

Whether ground be properly described as a "garden," within the same section, is a question for the jury. The words "plant," and "vegetable production," in sect. 42, do not apply to young fruit-trees.

THE prisoner was indicted on the 7 & 8 Geo. IV. c. 29, s. 38, for stealing pear-trees of the value of more than 1., to wit, &c., described in one count as growing in a garden, and in another as in ground adjoining to a dwelling-house. There was no count in which they were laid as growing in ground belonging to a dwelling-house.

There was a dwelling-house occupied by a tenant of the prosecutor, the back-door of which opened into a paved "entry," or walk, of about a yard in width. This "entry" ran along the back of the house, and was fenced on the opposite side by a low paling, with a wicket gate in the centre which opened on an unfenced gravel walk, running at right angles to the "entry" down the middle of a plot of enclosed ground of about half an acre. The ground on one side of this walk was occupied by the tenant as his garden; the other side was the ground on which the pear-trees in question were growing, and was retained by the prosecutor in his own occupation. The trees were grafted seedlings, about seven feet high, and intended for sale; and were of the value laid in the indictment. There were a few currant and raspberry bushes on the same part of the ground; and in the preceding summer the prosecutor had had a crop of potatoes and cabbages growing amongst the pear-trees. These as well as the fruit of the currants and raspberries, he had used in his own family; they were taken up in the autumn, and nothing had been sown on the ground since; but the prosecutor intended to make the same use of it in the present year. Using it in this manner was of service to the

trees, by keeping the earth loosened and free from weeds.

Powell for the prisoner:

The offence with which the prisoner is charged, is misconceived. He should have been charged before a justice for summary conviction

(1) Cited and followed by COZENSHARDY, J., in Vale v. Moorgate Street and Broad Street Buildings, Lim. [1899] W. N. 52, 80 L. T. 487, 488; and

distinguished by BUCKLEY, J., in Ind, Coope & Co. v. Hamblin [1900] 81 L. T. 779, 780.-R. C.

It

under the 42nd section of this statute, for these young trees.
are "plants," or "vegetable productions," "growing in a nursery
ground." The ground, at all events, is not rightly described.
is not a "garden": for it was no part of the tenant's garden, from
which the walk separated it, nor was it in his tenure with the
garden and the prosecutor used it as a nursery only, and the
vegetables which grew there were merely subsidiary to the purposes
of the nursery. Neither can it be said to be "adjoining" the
house, for the entry is stated to have divided them.

Whitcombe, for the prosecution:

As to the last objection (which goes to the second count) the Legislature meant to protect all grounds lying about dwellinghouses, or used with them, whether for pleasure, profit, or domestic purposes. The word "adjoining" does not necessarily import actual contact. If that had been the object of the framers of this Act, they would have used the phrase "next adjoining," which is one of ordinary occurrence, and in which the addition of the adverb shows that the strict interpretation of the word "adjoining," contended for on the other side, is unfounded.

PARKE, J.:

This enactment must be strictly construed, and I think I am bound to say, that ground cannot be properly said to adjoin a house, unless it is absolutely contiguous, without anything between them; besides, if this were not the intention of the Legislature, what is the effect of the other words in the enactment, which speaks of “ground adjoining, or belonging to any dwelling-house"?

Whitcombe:

Perhaps they may be meant to include plantations, &c., remote from the dwelling-house. But the first count is sufficiently sustained, for the ground in question was a garden: it was used as such by the prosecutor, for the raising of fruits and other vegetables for his family. Besides, the protection which this Act gives to gardens and other places adjacent to houses, seems to have been for the purpose of ensuring the security of dwellings; and this ground, which forms one entire plot *with the garden, is, in reality, part of that garden. A corner of an entire garden is not the less a part of it, because it chances to be planted with fruit trees, as well as other vegetables. The objection first taken cannot prevail; for the “plants and vegetable productions” spoken

of in sect. 42 in connection with "roots and fruits," obviously mean herbs, flowers, and such small garden products as are sold in a vegetable market.

PARKE, J. (after consulting with PARK, J. who was in the other Court):

We have considered the language of both these clauses, and are clearly of opinion that the word "plant," in sect. 42, coupled as it is with the other words which have been mentioned, does not mean such a description of plant as the trees which are the subject of this indictment and properly described in it (1).

My learned brother concurs with me also in thinking that, for the reasons which I have already expressed, this ground is improperly described as "adjoining a dwelling-house." The only question, therefore, remaining is, whether it can be said to be a "garden"; and on that question I think that I ought to take the opinion of the jury.

His Lordship then left it to the jury to say, upon the evidence, whether the ground was a garden as well as a nursery, or whether it was to be considered as a nursery only. The jury being of the latter opinion, an acquittal was directed.

1833.

TAUNTON, J. [2 Dowl. P. C. 189]

PRACTICE CASES.

GETHIN v. WILKS (2).

GALE v. WILKS.

(2 Dowling, Pr. Cas. 189–191.)

In order to enforce a landlord's claim for rent in arrear, against assignees, after a seizure under a fi. fa., he must distrain.

THIS was an application by the sheriff for relief under the 1 & 2 Will. IV. c. 58, s. 6, the Interpleader Act. It appeared that the sheriff had made a seizure under writs of fi. fa. on judgments entered up on warrants of attorney. The landlord gave notice before sale, under the 8th of Anne, c. 14, s. 1, of rent in arrear. Afterwards, notice was given of a fiat of bankruptcy issued against the defendant. Under these circumstances, the sheriff applied to the Court for relief. On showing cause, no one appeared for the re Neil Mackenzie, Ex parte Sheriff of Hertfordshire [1899] 2 Q. B. 566, 577, 68 L. J. Q. B. 1003, 1007.-R. C.

(1) See R. v. Taylor, Russ. & Ry. C. C. R. 373.

(2) Referred to by LINDLEY, M. R., delivering the judgment of C. A. in In