The plaintiff sent a horse, worth 1,000l., by a groom, to the defendants' railway station, for the purpose of being carried. As the groom was leading it, by the direction of one of the railway porters, to a particular part of the yard, the horse was startled by another horse, and backed, in consequence, on some sharp iron girders, which seriously injured it, so that it was necessary to kill it. No declaration of value had been made, nor any ticket taken out, nor any fare demanded. It was the usual practice at that station to put the horse into the horse-box before taking the ticket. The jury found that the defendants were guilty of negligence in leaving the girders where they were lying:-Held, that the railway company were protected, by the Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31. 8. 7), from being responsible to the plaintiff for any greater damages in respect of the injury to the horse than 501.

This was an appeal, by the plaintiff, from the decision of the Court of Queen's Bench, reducing the plaintiff's damages from 1,000l. to 50l.

The pleadings are set out fully in the report below (1). It will be sufficient now to state that the action was for negligence for placing certain iron girders in the railway station yard, so as to be dangerous to horses, whereby the plaintiff's horse, which had been brought to the station for the purpose of being conveyed by the railway, was injured.

On the trial, the evidence shewed that the plaintiff sent a race-horse, worth 1,000, under the care of a groom, to the defendants' station, at Worcester, to be carried on the line from Worcester to London.

In order to get the horse to the horsebox in which it was to be carried, it was

Decided in the Sittings after Easter Term, coram Erle, C.J., Pollock, C.B., Channell, B., Byles, J., Keating, J., Pigott, B. and Montague Smith, J. (1) 33 Law J. Rep. (N.S.) Q.B. 233.

necessary to pass through the defendants' yard, in which were a quantity of sharpedged iron girders, which narrowed the space. The groom took the horse to the yard, and on one of the porters calling out "London horses this way," proceeded to lead him, in the direction pointed out, by the girders. Another horse, which was in front, became terrified and backed upon the plaintiff's horse. This caused the plaintiff's horse to back suddenly against the girders, by which it was so injured that it was necessary to kill it. The groom had not taken any ticket for the horse, nor had he declared the value of the horse to the company or their servants. The usual practice at the Worcester Station was to get the ticket after the horse had been placed in the horse-box. On these facts,

COCKBURN, C.J. directed the jury to find for the plaintiff if they thought that the defendants had been guilty of negligence in leaving the girders in such a position in the yard.

The jury found a verdict for the plaintiff for 1,000l.

Lush (Wood with him), for the appellant, the plaintiff below. The ruling of the Lord Chief Justice is right. The company are not protected by section 7. of the statute 17 & 18 Vict. c. 31, which relieves the company from liability in case of an act of neglect or omission in the receiving, forwarding, or delivering of horses. The facts do not shew that the loss occurred in the receiving, forwarding, or delivering the horse. The company did not receive the horse. There was no contract for carriage effected. The horse was still in the possession of its owner. The accident happened before the company's servant had any control over it. It was only on the company's premises, and it was being ridden by the plaintiff's servant. It was not in the company's possession any more than if the horse had not been going to be carried but the master had merely ridden upon it to see another horse off. The words of the act are meant to limit the liability of the company as carriers only. The jury have found negligence in the company in having a dangerous station, but irrespective of their character of carriers, and no negligence on the part of the plaintiff. It is beside the question whether the horse was going there to be carried or not. If a third person

had injured the horse while in the yard, the company at common law would not have been liable.

[MONTAGUE SMITH, J.-The porter says, "London horses this way," and the horse goes. Is not that horse in the course of receipt?]

The calling out of the porter had only the same effect as if the company had put up a board outside their station, saying, horses for London were to go to the furthest part of the station. If the porter had taken the horse and had tried to put it into the horse-box, that would have been in the course of receipt. The test is whether the owner has delivered the horse to the company. Suppose at the end of the journey the company had delivered the horse to the groom, and the groom had met with a similar accident as he was riding away, it could not be said that this would be injury in the delivery. The liability of the company as carriers would have ended before the accident. As long as the plaintiff had not delivered the horse to the company he might declare the value. The statute was not intended to protect the company from the consequences of their negligence in leaving dangerous articles lying about in their yard.

Hawkins (H. James with him), for the respondents, the defendants below.-The company are protected from any greater liability than 50%. in respect of the injury to the horse. The horse was on the company's premises for the purpose of being carried, and was in the course of receipt, and its value had not been declared when the accident happened. The moment that the horse came on the company's premises for the purpose of being then carried the statute applies to it. The porter directed the horse to be put into the dangerous position. The horse would not have been there except it had been in the course of receipt, having been moved to the place pursuant to the direction of the company's porter for the sole purpose of being placed in the horse-box which was close to it. The porter was in fact marshalling the traffic. The company have a right to have the value declared in order that they may take better care if the horse is very valuable.

Lush replied.

ERLE, C.J.-We affirm the judgment, for the reasons assigned by the majority of the Court below.

The other JUDGES concurred.

1865. Nov. 11.

Judgment affirmed.

SANDERS, appellant, v. BALDY, respondent.

Game-1 & 2 Will. 4. c. 32. ss. 3-23Cumulative Penalties-Using Engine to take Game out of season.

The 1 & 2 Will. 4. c. 32. s. 23. imposes a penalty on a person who uses an instru ment for the purpose of taking game, not being authorized so to do for want of a game certificate: Held, that an uncertificated person who set a trap for the purpose of taking partridges or pheasants in the month of March, was liable to be convicted under that section, notwithstanding the 3rd section of the same act.

The penalties imposed by the 23rd section of 1 & 2 Will. 4. c. 32. are cumulative upon those imposed by the 3rd section of that act.

Marine Insurance-Policy-Illegal Act of Master-Want of Authority from Owner.

A master of a vessel, though acting within the scope of his ordinary authority as master, who does an act in contravention of the laws of his country without the express authority, knowledge or sanction of his owner, whether with or without a view to the owner's advantage, is guilty of an implied breach of his orders.

Therefore, where a master of a vessel has sailed at a time and on a voyage, within the 16 & 17 Vict. c. 107. ss. 170-2, with a portion of his cargo stowed on board on deck and without a certificate of clearance, contrary to that statute, and without the knowledge or authority of the owner, though with a view to the benefit of such owner, the illegality of the voyage does not affect the owner so as to prevent his recovering against an insurer for the loss of the cargo on the voyage by the perils insured against on a policy of insurance on freight.

The declaration in this action was on an ordinary policy of insurance on freight at and from Restigouch to Liverpool, and is set out in the report of the case in the Court below (1).

The fourth plea, upon which the present argument was based, stated that the said policy of insurance was made, and the cargo-the freight in respect of which was insured as in the declaration alleged was shipped on board the said ship, after the passing and coming into operation of the 16 & 17 Vict. c. 107, intituled 'An act to amend and consolidate the laws relating to the customs of the United Kingdom,' &c.; and that the aforesaid cargo consisted of timber and wood goods; and that Restigouch in the said policy mentioned was and is a British port in North America; and that the said ship, with the said cargo, cleared out and sailed from Restigouch aforesaid after the 1st of September, 1861,

Coram Erle, C.J., Pollock, C.B., Willes, J., Bramwell, B., Channell, B., Byles, J., Keating, J. and Pigott, B.

(1) 34 Law J. Rep. (N.S.) Q.B. 63.

and before the 1st of May, 1862, to wit, on the 13th of November, 1861; and that before and at the time of the said ship so sailing as herein before mentioned, the whole of the said cargo was not below deck, but, on the contrary thereof, the master of the said ship, before and at and after the time of the said ship so sailing as aforesaid, placed and permitted, and caused to be placed and to remain and be upon and above the deck of the said ship, part of the said cargo, contrary to the statute in that behalf made and provided; and that at the time of the said ship so sailing as aforesaid the master of the said ship had not obtained from the clearing officer any certificate that the whole of the cargo of the said ship was below deck, contrary to the statute in that behalf made and provided; and that before and at the time of the said ship so sailing as aforesaid, and until and at the time of the alleged loss, the plaintiff was the owner of the said ship, and the said freight so insured as aforesaid was payable to him as such owner in respect of the said cargo.

To this plea there was a demurrer and joinder in demurrer, and a traverse, on which issue was joined.

On the trial, before Shee, J., at Liverpool, it appeared that the vessel sailed on the 13th of November, 1861, with the whole of the cargo that was in freight properly stowed below deck; but that the master took on board a quantity of spars and other articles for his owner to be carried to Liverpool which were placed on deck. This he did in the exercise of his general authority as master, without any instructions from the plaintiff, his owner, to do so; his object, it would appear, being to save expense to his owner in obtaining the materials necessary for refitting the vessel in Liverpool after the voyage. The jury found that the vessel was not in fact rendered unseaworthy by this deck load; and that the plaintiff was not aware of the conduct of the master till after the policy was made and the ship had sailed.

The learned Judge ruled that the spars, &c. were cargo within the 16 & 17 Vict. c. 107. s. 171, and he directed the verdict to be entered for the defendant on both pleas, giving the plaintiff leave to move to enter the verdict for him.

A rule was obtained accordingly, and the rule and the demurrer were argued together in the Court below, when the Court gave judgment for the plaintiff. The defendant then alleged error.

Cohen, for the defendant.-It is submitted that the plea is good, and that the plaintiff, the shipowner, cannot recover in this action, because the master of his ship, though without any authority from him, has violated the enactments of the 16 & 17 Vict. c. 107. ss. 170, 171, 172. This voyage was entirely illegal, and the insurance is void-Marshall on Insurance, 4th edit. 135. On the statute, 26 Geo. 3. c. 40. s. 1, which required the master to make out and sign a manifest of all goods shipped in British ships beyond sea for Great Britain, with the particulars of the cargo, before the ship cleared out, it was held that every part of the cargo, even that which was used for dunnage or ballast, must be inserted, and the omission of it rendered the voyage illegal-Frean v. Dawson, cited in Marshall on Insurance, 136, 4th edit. A violation of the Navigation Act, 6 Geo. 4. c. 109, by the master, in sailing without having the proper proportion of British seamen required by that act, would render the voyage illegal and the insurance void-Suart v. Powell (2), Duer on Marine Insurance, 377. The imposition of a penalty does not prevent the voyage being illegal. The case of Cunard v. Hyde (3) is explained on the ground that the master was not the agent of his owner; but it is submitted that he is his agent, and the loading of the cargo is within the scope of his authority. In Bell v. Carstairs (4) a distinction was taken between owner and assured of ship and cargo, and a mere assured of cargo. The former could not recover when the latter could-Smith's Mercantile Law, 370, 5th edit. If it is said that no authority can be implied in the master to contravene the act,-see Earle v. Rowcroft (5),—it may as well be said that no authority can be implied to do a careless or negligent act. Hobbs v. Hannam (6) was de

cided on the ground that the owner was bound by illegal acts of the master, and could not recover on the policy of insurance, though, no doubt, there it was put on the ground that he acted by the express orders of the owner. Next, the ship was not seaworthy. The taking on board timber on the deck and sailing without a certificate of clearance constitutes statutory unseaworthiness, and discharges the insurer. The distinction between the cases which seem to say that the improper act of the master does not bind the owner, is not only that between owners of ships and owners of cargo, but also between cases where the risks of the insurance are increased by his act, and where they are not. If they are, the insurers are discharged-1 Duer, pp. 318, 320, 410. There is an implied warranty that the ship should be seaworthy, and that means that the assured will put the ship in such a condition as is usual and proper at the commencement of the voyage, and which a prudent uninsured owner would put her in -Burges v. Wickham (7) and Dixon v. Sadler (8). The carrying a deck cargo was found to be an unusual thing by the jury, and a ship not properly documented is legally unseaworthy. There is an implied warranty in every insurance that the provisions of the statutes shall be complied with.

Brett, Milward and Crompton were not heard. Cur. adv. vult. The judgment of the Court was now (Nov. 28) delivered by—

ERLE, C.J. In this case it appeared in the plea, in an action on a policy for freight, that, contrary to the statute, the master had taken out a cargo in November or December, and part of the cargo he was taking out contrary to the provisions of the 16 & 17 Vict. c. 107. Now, it is clear that if Wilson, the shipowner, had done that or had been cognizant of it, according to the case of Cunard v. Hyde (3), it would have been an illegal voyage, and the policy thereon might have been rendered void; but the owner is not shewn to have known anything of it, or to have

(7) 33 Law J. Rep. (N.s.) Q.B. 17, per judgment of Blackburn, J.

(8) 5 Mee. & W. 414; s. c. 9 Law J. Rep. (N.8.) Exch. 48.

been a party to it in any way; and the judgment of the Court below was that by reason of knowledge and authority from him to the master not being shewn, the rule laid down in Cunard v. Hyde (3) did not apply to the present case. The Court was of opinion, upon that authority, that though the master had authority to load a cargo, it was not an authority to violate the statute in loading the cargo, nor was it an act of the master that the owner must be presumed to have assented to. In that judgment we concur. We are also of opinion that the second ground taken in the Court below was a valid ground. Even if it had been shewn in fact that the master had rendered this an illegal voyage without the knowledge or authority of the owner, it would have been a barratrous act on the part of the master, and the insurers would have been liable by reason of the barratry, and on that ground the insurers or freight ought to be liable. There was a further contention, in the present case, that there was a statutory unseaworthiness shewn, because the ship had taken on board timber on the deck, and had sailed from Canada without having a certificate of clearance; and it was urged, on the principle on which it had been held that if a ship sails without being provided with proper documents, and for that reason the risk of the insurers is increased, and the liability for loss greater than it would be if the ship had the documents, that the insurer is discharged; that therefore, as this ship sailed without the certificate of clearance required by the statute in Canada at the time of sailing, viz., that there was no cargo on deck, the absence of that document created a statutory unseaworthiness within this principle. It appears that the principle by no means applies; the document in question here is a document merely relating to the compliance. with the requisition of the statute at the port of loading to secure a compliance with the provision of the statute there, and it does not at all bear upon the risk of the voyage after the ship is out of the port of discharge, and it does not at all bear upon the ship in the port of discharge. We think that though the argument was scarcely pressed by the learned counsel with any idea that it should succeed, there is nothing NEW SERIES, 35.—Q.B.

This was an action on a policy of insurance, effected by the plaintiff on the life of one Mason. The company pleaded, fourthly, that the proposal and declaration, the basis of the policy, stated that the assured had not been afflicted with or had any symptoms of gout, rupture, insanity, liver complaint, hæmorrhoids, fistula, consumption, asthma, spitting of blood, or any other complaint: whereas Mason, at the time of making the policy, had had symptoms of disease of the stomach.

Upon an application for particulars under this plea, Shee, J. made an order directing the defendants to deliver to the plaintiff particulars of the symptoms of the disease of the stomach mentioned in the plea.

Raymond now moved to rescind the order. -It is most unfair to require these particulars to be given. The particulars, through defects in technical phraseology, may inaccurately describe the disease, and be made the subject of adverse criticism at the trial. The disorders of the stomach are numerous, and it may be difficult to give a name to each of them. In Pylie v. Stephens (1), an action for breach of warranty of a horse, the decla

(1) 6 Mee. & W. 813. N