1866. CITY OF DUB LIN STEAM υ. THOMPSON. be deemed to be the register tonnage of such ship; and such deduction shall be estimated as follows, (that is to say); "(a) As regards ships propelled by paddle-wheels in which the tonnage of the space solely occupied by and necessary for the proper working of the boilers and machinery is above twenty per cent. and under thirty per cent. of the gross tonnage of the ship, and in ships propelled by screws in which the tonnage of such space is about thirteen per cent. and under twenty per cent. of such gross tonnage, such deduction shall be thirty-two onehundredths of such gross tonnage: "(b) As regards all other ships, the deduction shall, if the Commissioners of Customs and the owner both agree thereto, be estimated in the same manner; but either they or he may in their or his discretion require the space to be measured and the deduction estimated accordingly; and whenever such measurement is so required the deduction shall consist of the tonnage of the space actually occupied by or required to be inclosed for the proper working of the boilers and machinery, with the addition in the case of ships propelled by paddle-wheels of one-half, and in the case of ships propelled by 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"-[Here follow five different heads, describing the mode in which the measurement of the space is to be made.] Sect. 29. "The Commissioners of Customs may, with the sanction of the Treasury, appoint such persons to superintend the survey and admeasurement of ships as they think fit; and may, with the approval of the Board of Trade, make such regulations for that purpose as may be necessary; and also, with the like approval, make such modifications and alterations as from time to time become necessary 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 admeasurement therein adopted." 1866. CITY OF DUB PACKET CO. บ. THOMPSON. The Commissioners of Customs, with the approval of LIN STEAM the Board of Trade, and professing to act under section 29, issued in 1860 "new rule," the effect of which was to deprive the vessel measured of the additional allowance of one-half of the "tonnage space," as directed by the 23rd section. The Plaintiffs' steamship Columba was measured according to these new rules. The Solicitor General, (H. Giffard and Pollock with him,) for the Defendant, contended that the new rules. issued by the Commissioners of Customs with the approval of the Board of Trade were made under and authorized by the 29th section of the Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104; that the power there given to modify and alter the " tonnage rules" was not limited to the numbered paragraphs of the 23rd section, declaring the rules by which the measurement and use of the space occupied by the boilers and machinery was to be governed, but included all the provisions as to tonnage contained in that section; that the first part and its various subdivisions formed together a "tonnage rule," though the section is divided into sub-rules; and he referred to sects. 21 and 22, which, like the 23rd section, were "rules," and were so called in the margin of the Act. Bovill, (Watkin Williams with him,) for the Plaintiff, was not called upon. POLLOCK, C. B. We are all of opinion that the judgment of the Court of Common Pleas ought to be affirmed. The question is in substance, whether the Commissioners of Customs, with the approval of the Board of Trade, may make certain regulations, modifying the tonnage rules prescribed by the Merchant Shipping Act, 1854? I may 1866. LIN STEAM PACKET CO. v. THOMPSON. observe for myself, that when an Act of Parliament is CITY OF DUB- passed, and power is therein reserved to a private body to make any alteration in its provisions, we should look at it with care and examine it with strictness in order to see what is the real sense of the language used; and we ought not to take what is called a "comprehensive view" of such a clause, and allow such a body to make alterations in the enactments of a statute, when it was not intended that they should have such a power. Looking at the 23rd section of the Act in question, we find that it consists of three portions, the first part is presented in the ordinary way, and states that in calculating the tonnage of a steam-vessel allowance is to be made for the space occupied by the propelling power; the second is included under the letters (a) and (b), and shows how the deduction is to be estimated; and the third part gives the rules for the measurement and use of the space occupied by the propelling power. These rules are numbered 1, 2, 3, 4, and 5, and I can see nothing else in this statute to which the term "tonnage rule" is applied. Then the 29th section states that Commissioners of Customs may, with the approval of the Board of Trade, "make such modifications and alterations as from time to time become necessary 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 admeasurement therein adopted." It appears to me that in these words the divisions of the section marked (a) and (b) are not included, and that the commissioners have no power over those provisions. The new rules which have been issued by the Commissioners of Customs are therefore ultra vires; and the judges of the Court of Common Pleas having so decided, their judgment must be affirmed. MARTIN, B. I am of the same opinion- and I think this is a very clear case. The commissioners have no authority given them to interfere with the sub-sections (a) and (b). There are enacting clauses of the legislature saying what shall be done; and it is not for the commissioners to alter rules stating in express terms what allowance is to be made. Their authority is confined to the last part of the 23rd section; i. e., to the mode of measurement set out in the numbered paragraphs. I think, therefore, that the commissioners have exceeded their powers in varying the clauses (a) and (b), and the judgment of the Court of Common Pleas must be sustained. CHANNELL, B. I am of the same opinion, and for the same reasons. BLACKBURN, J. I am of the same opinion. The 29th section states that the commissioners may make modifications and alterations in the tonnage rules "in order to the more accurate and uniform application thereof, and the effectual carrying out of the principle of admeasurement therein adopted." These latter words show what the legislature meant. The 23rd section enacts that an allowance shall be made for the space occupied by the propelling power occupied in steam vessels; and by clauses (a) and (b), that an additional per-centage allowance is to be given according as the vessel is a screw or paddle-boat; and the section proceeds to state what is the mode of measurement to be adopted. I think the Board of Trade were right in approving of the rules for the more uniform measurement of vessels, but that they could not set aside the provisions of the statute giving the additional allowance. MELLOR and LUSH, JJ., and PIGOTT, B., concurred. Judgment affirmed. 1866. CITY OF DUB LIN STEAM PACKET CO. V. THOMPSON. 1866. February 5. Charter-party, construction. "One-half of the freight to be advanced by freighter's acceptance." Prepayment of freight. Lien. (Coram POLLOCK, C. B., MARTIN, CHANNELL and PIGOTT BB., BLACKBURN and MELLOR, JJ.) 66 TAMVACO v. SIMPSON. By a charter-party goods were made deliverable at Alexandria, 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 same." In pursuance of this clause the charterer gave his acceptance for half freight on signing bills of lading, on which a receipt "on account of the within freight" was endorsed; and the invoice also gave credit for the amount. The bill of lading was endorsed in blank to the Plaintiff, but before the ship's arrival at Alexandria, the charterer suspended payment, and the master, on arriving, and during the currency of the bill of exchange, refused to deliver the cargo unless the whole freight were paid, without deducting the charterer's acceptance. In order to obtain possession of the goods the Plaintiff paid the whole, and brought an action to recover the excess and damages for the detention of the goods. Held (affirming the judgment of the Court of Common Pleas), that the Defendant had no lien on the goods during the currency of the bill, and that the Plaintiff was entitled to recover. THIS HIS was a proceeding in error on a judgment of the Court of Common Pleas for the Plaintiff, upon a special case. The facts are fully set out in the report of the proceedings in the Court below, 19 C. B., N. S. 453. It will be sufficient to state here that the Plaintiff was a merchant residing at Alexandria, and the Defendant a shipowner in business at Sunderland. The action was brought to recover 3011. 17s. 6d. money alleged to have been improperly paid to the Defendant at Alexandria for half freight, which it was contended had been already paid by a bill of exchange given by the charterer, one De Mattos, on signing bills of lading according to charterparty. The charterer having become insolvent during the currency of the bill and before the ship's arrival at the port of discharge, the Defendant refused to deliver the cargo except upon payment of the full amount of freight. The question for the Court was, whether the Plaintiff |