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1858.

Mayor of ROCHESTER

V.

difficulty that the Court would have no power to command the Sessions to do the illegal act of hearing an appeal which had not been preferred within the time prescribed by the statute which gives it. In other words, The QUEEN. according to the explanation given by Patteson J. in Rex v. Hewes (a), the justices are ordered to hear the appeal and to enter continuances because these are necessary to enable them to hear.

Assuming, however, that, according to these authorities, the Court of Queen's Bench has power to command persons to perform a function which it was their duty to perform, and which they have neglected to perform till it is too late to perform it legally, unless by the aid of a mandamus, no authority has been cited to shew that the Court of Queen's Bench has power to command persons to perform a function which it was never their duty to perform at any time whatever. In my opinion the Legislature has omitted to impose on the Mayor and assessors for the time being any duty as to the revision of the burgess list of the preceding year, in the event of their predecessors in office having neglected to revise them. And, however inconvenient this omission may be, it cannot be remedied by a writ of mandamus (b).

(a) 3 A. & E. 725.

(b) See Regina v. Overseers of North Bierley, antè, p. 519.

Williams J.

1858.

Monday, July 5th.

Action on a time policy on a ship for a total loss.

Plea: that

the plaintiffs knowingly, wilfully and improperly sent the ship to sea in a

condition in which it was dangerous to go to sea, and suffered her to remain in

that state near the shore, during which

IN THE EXCHEQUER CHAMBER.

(Appeal from the Court of Queen's Bench.)

ROBERT THOMPSON, JOSEPH LOWES THOMPSON and
JOHN THOMPSON, appellants, against THOMAS
DICK HOPPER, respondent.

THIS

IIS was an appeal from the decision of the Court of Queen's Bench making absolute a rule for a new trial on the ground of misdirection.

The case on appeal set forth the pleadings and the whole of the evidence at the trial.

The declaration contained two counts on a time policy on the ship Mary Graham. The material pleas were plea 3 to the first count: That plaintiffs knowingly, wilfully and improperly sent the ship "out to sea in an

unseaworthy state, and when she was not fitted for the

time, by reason of the premises, the loss occurred. Issue thereon.

On the trial, it appeared that the plaintiffs personally sent the ship out to sea in an unseaworthy state, and caused her to anchor in the offing in that state. Whilst there she was caught in a storm from seaward and driven ashore. There was evidence justifying the jury in finding that the immediate cause of the loss was not occasioned in any way by the unseaworthiness; and, the jury having found that such was the fact, a verdict was entered for plaintiffs. There was evidence from which the jury might have drawn the conclusion that, though the unseaworthiness was not the immediate cause of the loss, the loss would not have occurred if the ship had been seaworthy when she went to sea. No question as to this was left to the jury.

The Court of Queen's Bench having made absolute a rule for a new trial on the ground of misdirection, holding that the plea was proved, if that misconduct of the plaintiff occasioned the loss, though it was not the immediate cause, the Court of Exchequer Chamber on appeal reversed the decision. Williams J., Martin B., Willes J. and Bramwell B. holding that the act of the plaintiff in knowingly sending the ship to sea could only affect the liability of the defendant if it was the immediate cause of the loss. Cockburn C. J. concurring with the majority only on the ground of the special terms of the plea in this Crowder J. dissentiente.

case.

voyage, and when she was not in a fit and proper condition safely to go to sea, and at a time when it was dangerous for the ship to go to sea in the state and condition in which she then was. And the plaintiffs

wrongfully and improperly caused

and permitted the

ship to be and remain on the high seas near to the sea shore, for a great length of time, in the state and condition aforesaid, and without a master, and without a proper crew to manage and navigate her on the said voyage: during which time the said ship, by reason of the premises, became and was wrecked and wholly lost :" and a similar plea to the second count. To each plea was a demurrer, and issue. The pleas were held good on demurrer by the Court of Queen's Bench (a).

The cause came on to be tried, before Bramwell B., at the Summer Assizes 1856, at Durham, when a verdict was found for the plaintiffs. The whole evidence was set out in the case on appeal; but it was agreed on the argument that the abstract of the facts given in the report of the case below (b) was sufficiently accurate; except that the jury had found "that the ship was not lost in the state and condition in which she left the harbour;" which finding was not mentioned in the report below, but did not become material. The abstract is therefore not repeated.

In Hilary Term 1858 (c), Atherton argued for the appellants (plaintiffs below), and Manisty for the respondent (defendant below). The arguments and authorities sufficiently appear from the judgments.

Cur. adv. vult.

(a) See Thompson v. Hopper, 6 E. & B. 172.
(b) See Thompson v. Hopper, 6 E. & B. 937.
(e) Thursday, January 21st.

1858.

THOMPSON

V.

HOPPER.

1858.

THOMPSON

V.

HOPPER.

Crowder J.

In this Term, there being a difference of opinion on the Bench, the learned Judges delivered judgment seriatim.

CROWDER J. The question in this case is whether the learned Judge's direction at the trial, upon the issue joined on the 3d plea, was sufficient; and I am of opinion it was not. The validity of that plea as a defence to the action was questioned upon demurrer, and affirmed by the decision of the Court of Queen's Bench. The Court held that unseaworthiness per se was no defence upon a time policy, and that therefore the two first pleas were bad; but the third plea, in addition to the allegation of unseaworthiness, charges the plaintiffs with wilfully sending the ship to sea in an unseaworthy state, and causing her to be detained in such state in a dangerous place for some time, during which time, by reason of the premises, she was wrecked and lost. This plea was held to be a good defence to the action.

Several questions were put to the jury by the learned Judge at the trial; and they found, among other things, that the ship was sent to sea in an unseaworthy state; but that the loss was not occasioned directly or indirectly by the unseaworthiness. The objection to the summing up is, that the main ground of defence in the third plea was not submitted to the jury at all, viz. whether the loss was occasioned by the plaintiffs' wrongful act in sending the ship to sea unseaworthy, and detaining her there in a dangerous position, there being evidence to shew that, if she had not been sent to sea unseaworthy, or not kept there unseaworthy near the shore, she would have sailed away, and avoided the perils of the sea which she there encountered, and which were the

proximate cause of her loss. The learned Judge's direction to the jury at the trial proceeded upon the assumption that the underwriters would only be excused under the third plea if the loss was proximately occasioned by the ship's unseaworthiness; whereas it seems to me that the substantial ground of defence in that plea is that the loss was occasioned by the wrongful act of the assured in knowingly and wilfully sending the ship to sea in an unseaworthy condition, whereby she was exposed to those perils of the sea which immediately caused her loss, and which, but for that wrongful act of the assured, she would have escaped, although in fact the loss was accidental and unconnected with her state of unseaworthiness. The two cases cited in the judgment of the Court of Queen's Bench of Davis v. Garrett (a) and Bell v. Carstairs (b) strongly support, in principle, that judgment. As against the underwriters, it can hardly be contended that wilfully sending the ship to sea in an unseaworthy condition is not a wrongful act; and, if so, I think the jury ought to have been directed to consider the question whether that wrongful act occasioned the loss proximately by the perils of the sea, not because she was unseaworthy, and so less able to contend against those perils, but because she was, by reason of that wrongful act, placed in a dangerous position and so forced to encounter perils which, had she been in a seaworthy state, she might have entirely escaped. I think there was some evidence to go to the jury upon that question, which therefore ought to have been left to them.

Consequently the judgment of the Court of Queen's Bench should be affirmed.

1858.

THOMPSON

V.

HOPPER.

Crowder J.

(a) 6 Bing. 716.

E. B. & E.

(b) 14 East, 374,

3 x

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