other cases, and asks, what would be the case if there was an accidental fire, by which a great part of the flour was destroyed, and says that in such a case the loss would fall upon the defendants; and that upon the ground of estoppel being reciprocal, the loss ought, in such a case, to fall on the plaintiffs if they are entitled to recover in this action. There is, however, a fallacy in that; the defendants may well have placed themselves in a dilemma, and whilst by their acts they may have put it out of their power to deny the plaintiffs' right to 350 barrels of flour, it may well he that in case of loss they alone must suffer. But Mr. Williams says, that there is no estoppel, and that the defendants only represented that everything was in order, and that according to the usual course of business, there would be no appropriation until delivery, and that, therefore, the defendants do not now seek to contradict what they represented. I think that is a fallacy. The defendants received the order, and should have stated, if they intended to protect themselves against this claim, that they held no particular 350 barrels of Clarke's, but only had a contract to deliver Clarke that number. They, however, allowed the plaintiffs to suppose that they held that number of barrels belonging to Clarke. I think they are, therefore, estopped from now disputing the plaintiffs' title. POLLOCK, C. B.-The defendants acknowledged to the plaintiffs that they held the flour belonging to Clarke, and are bound, when called upon, to deliver that quantity. If they have not got it, then they were bound to have it. Innkeeper and Guest-Liability of Innkeeper for Injury to Guest's Horse-Master and Servant. An innkeeper received B as a guest. B brought with him a horse, which was delivered to C, who, apparently, acted as ostler at the inn. C was, in fact, a livery-stable keeper, in business for himself at other premises; but, the innkeeper's stables being under repair, C took care of the horses arriving at the inn, and B's horse was taken to C's own stables. After ards, during the temporary absence of B from the ian, C drove the horse out for exercise, and, during the drive, the horse was injured :— Held, that, regarding the relation of the innkeeper to C, which relation, apparently, and for anything that B knew to the contrary, was that of master and servant, the innkeeper, as such, was responsible for the injury to the horse, occasioned whilst under the control of C. This was an appeal from the decision of a county court Judge, in an action brought against an innkeeper at Warrington. At the hearing it appeared that the stabling of the defendant's inn had been pulled down for street improvements, so that the inn was just then without stabling. When guests came there with horses, the horses had to be accommodated elsewhere. Rose, a person acting as ostler, had the keeping of the horses He received no at temporary stables elsewhere. wages from the innkeeper; but was a livery-stable keeper on his own account. Plaintiff came to put up at the inn, and Rose took care of the horse. Plaintiff departed, leaving his horse, and said that he should return on the following Monday. He did not, however, return for a fortnight. On a Sunday, Rose, having put the horse into harness, started off for a drive with a friend, for the purpose, as he said, of exercising the horse. The horse became unmanageable and was injured. These facts being proved, it was contended, for the defence, that the innkeeper was not responsible, because: 1st, the horse was not in her custody, and was left for an unreasonable time; and, 2nd, because the ostler was not her servant, and therefore she was not liable for his negligence. The Judge overruled these objections, and, on the ground of the defendant's liability as innkeeper, gave judg ment for the plaintiff. Hayes, Serjt., for the appellant. The question is, whether the innkeeper was liable or not under the circumstances? It is the common case of master and servant, and the driving a friend out on Sunday was wholly without the scope of the servant's authority. Therefore the innkeeper was not liable as master. [BRAMWELL, B.- I don't think your point is in question here. The Judge says, "I overrule your objections"; and why? Because she is an innkeeper.] [MARTIN, B.-The plaintiff is a guest at an inn: he leaves his horse there, and is entitled to have it taken care of. He is not to be affected by any agreement between the innkeeper and her ostler, of which he knows nothing.] It is not the duty of an innkeeper to keep the horse of a person who is not a guest. Therefore, when a guest has left, the innkeeper is not bound to keep the horse for an indefinite period. Then, again, exer: cising a horse left at an inn is not within the scope o the ostler's authority. The question is, how far is the liability of an innkeeper to be extended? Caylye's Case, 8 Rep. 32, decides that, under certain circumstances, the innkeeper is liable to the guest for the safe custody of his chattels. But to what extent is that liability to be carried? Is it to be only for a reasonable time? Even that is scarcely a good test. By the guest's departure, the situation is completely changed.* [BRAMWELL, B.-Suppose he had been in the habit of going there and leaving for a day or so, and then coming back, would she not be liable ?] [POLLOCK, C.B. guest?] matter whether that was done by the man as ostler or otherwise. The innkeeper is an insurer, and is answerable for the carelessness of the servant. That - When does he cease to be a disposes of the first point. Then the second point is that, the act being done without her permission, she is not liable. That makes no difference. She assents to that act by her position as an innkeeper. She takes the horse and is responsible. The guest stays away beyond his time, and the horse is sent out for exercise and injured. She must take the consequences. [BRAMWELL, B.—If I might answer that question, I should say, "A long time before this took place."] [POLLOCK, C.B.-When, then, does a man cease to to be an insurer ?] When a man leaves, he ceases to be a guest, and the innkeeper then ceases to insure his property. [MARTIN, B.-But the point was not raised in the county court.] It is hardly to be expected that all these points can be raised there. [MARTIN, B.-It is quite clear that the relation of master and servant existed. The second point is, that the servant was not acting within the scope of his authority.] I say the master is not responsible for the act of his servant, unless it be done in pursuance of his duty. Mitchell v. Crassweller, 13 C. B. 237, is a case exactly in point. Maule, J., in the course of the argument, said "The question is, not whether the servant is trusted, but whether he is employed about his master's business at the time." [BRAMWELL, B.-Suppose a man out of malice kills the horse?] The principle is the same. [BRAMWELL, B.-I begin to think to some extent with you. Is it reasonable that he should leave the horse there for a fortnight? I think not. He would, by doing so, if we held against you, make her more liable than if she were a livery-stable keeper.] The case ought to be sent back for the Judge to restate it. [BRAMWELL, B.-I only go with you as far as this, viz., that if the Judge had said she was not a liverystable keeper, he would have had sufficient materials for that decision.] [MARTIN, B.-This is not a case of a wrongful act done to a stranger by a man's servant.] It is the point of the defendant being an innkeeper, which does not appear to have been considered below. MARTIN, B.-I am clearly of opinion that the plaintiff was entitled to recover. This case has been put upon a fallacy throughout. Whether defendant took the horse as innkeeper or as livery-stable keeper, makes no difference. The horse was taken out for exercise on a Sunday, and met with an accident. defendant having the custody of this horse as a liverystable keeper, her servant took it out. I apprehend that, if the horse was improperly taken out by the servant, the plaintiff is entitled to judgment. The BRAMWELL, B.-I think this case must be decided for the respondent, and on this ground. It has been urged, that the relation of innkeeper and guest had ceased. But here we don't know what the previous relations of these parties were. The guest might have been in the habit of going away and leaving things there. Therefore, there is no reason why this decision should be wrong. He has not shown that the servant was in the wrong, and on that ground, too, I think the respondent is entitled to our judgment. Submission to Arbitration-Power to revoke. A and B entered into a written agreement for emptying a mill-pool at a given rate, the quantity of mud removed to be settled by N by his admeasurement ; and if any disputes arose between A and B, it was agreed that N should also settle such disputes. Differences having arisen, they were referred accordingly to N for settlement:— Held, that the agreement, so far as it related to the admeasurement of the mud, was irrevocable; but revocable so far as it related to the reference of disputes. POLLOCK, C.B. The county court Judge overruled all the objections made for the defendant, and gave judgment for the plaintiff. The question is, whether the Judge was right, or not, in overruling the objections made? The first question is, whether the horse was in the custody of the innkeeper? It was in DEMURRER.-The declaration set forth an agreement, the custody of the ostler, but was that as much the custody of the innkeeper as of the ostler? The plaintiff made in writing, between plaintiff and defendant, for went to the defendant's inn, and was there received as a the emptying, by the defendant, of a mill-pool in which guest. The plaintiff's horse appears to have been taken there was an accumulation of mud. It was provided down to the stables in the ordinary way. The apparent by the agreement that defendant should be paid at a relation between the innkeeper and the ostler is what certain rate upon the quantity removed, and this we have to look to—the apparent relation. The horse quantity was to be fixed by the admeasurement of N., disIt does not was taken away in 'the usual manner. a third party. It was also provided that if any putes arose between plaintiff and defendant, they should be referred to the arbitration of the said N. Plaintiff and defendant having disagreed upon the subject of the work done, N. arbitrated the dispute, and made his award, by which the defendant was required to pay certain moneys to the plaintiff. 4th Plea. That before the making of the said alleged award, the defendant revoked the said submission to arbitration and the authority of the said Thomas Neville as such arbitrator, and then gave the said Thomas Neville notice of such revocation. Whereupon, demurrer and joinder in demurrer. - Gray, in support of the demurrer.-The plaintiff cannot, by giving notice to Neville, revoke his authority to decide the matters submitted. Part of the consideration itself which induced the plaintiff to enter into the agreement was, that the measurement of the mud, as well as matters which might come into dispute, should be submitted to Neville; and as that part of the submission which relates to admeasurement would certainly be irrevocable, and as the rest is bound up with that part, the whole is irrevocable. There can be no doubt as to what the parties themselves intended. [MARTIN, B.-The meaning, no doubt, is plain enough.] If the original agreement is itself a submission, then the effect of 17 & 18 Vict. c. 125, s. 17, is to make it a submission containing an agreement that it shall be made a rule of Court, and so by 3 & 4 Will. 4, c. 42, a. 39, it is not revocable without leave of the Court, or [POLLOCK, C.B.-You need not labour that point.] [MARTIN and BRAMWELL, BB.-No point turns upon that.] He cited, Leeds v. Burrows, 12 East, 1; [MARTIN, B.-Mr. Cole urges that the arbitrator had no power to decide upon the dispute; but he had power to measure.] The meaning of the parties was, that the arbitrator should estimate the price. [MARTIN, B.-I think that was so; but that is just such an agreement as the law says may be revoked.] POLLOCK, C.B.-I think the defendant is entitled to our judgment. Here there were two references, in fact, to Neville-one of them, in order that he should ascertain the quantity, which one cannot be revoked; the other, that he should ascertain the amount and settle disputes, and this is revocable. MARTIN, B.-I am of the same opinion; but I Mr. Gray has not quoted a regret that the law is so. single case to show that where there is a reference in consequence of disputes, as in this case, such a sub mission is not revocable. Held, that, whether the defendant had or had not the authority of the proper conservator for that purpose, yet that he might lawfully do the acts complained of. DEMURRER. -Declaration states that the plaintiff sued the defendant for that the defendant seized, cut to pieces, and destroyed the plaintiff's fishing-nets and poles, and converted the same to his the defendant's own use, and wrongfully deprived the plaintiff of the use and possession thereof. 3rd Plea. That before and at the time of the alleged grievances in the declaration complained of, the plaintiff had placed and had been and was using in a certain tidal water, to wit, the river Conway, certain fixed engines for catching salmon, in contraven. The Northampton Gas Light Company v. Parnell, tion of the provisions of the Salmon Fisheries Act, 15 C. B. 630; King v. Joseph, 5 Taunt. 452; Milne v. Gratrix, 7 East, 608; Green v. Pole, 6 Bing. 443; and Russell on Arbitration, 151. Gray replied. 1861, and that the fishing-nets and poles mentioned in the declaration are the said fixed engines so placed and used by the plaintiff in the river Conway as aforesaid, and the defendant says that he took possession of and destroyed the said fishing-nets and poles by the order and under the direction of one Edward Sharpe, as and then being the conservator of the said river duly appointed in that behalf, as he lawfully might under the provisions of the said Act of Parlialiament for the cause aforesaid, which are the grievances complained of. Salmon Fishery Act, 1861, ss. 11, 12. The appellant was convicted of having caught in the salmon cage, on the river Dee, in the city of Chester, and within fifty yards below a dam then existing, six salmon, otherwise than by rod and line, contrary to the 2nd Replication to 3rd Plea. That the said Edward Sharpe was appointed by the justices of the peace in and for the county of Denbigh assembled at the General or Quarter Sessions of the peace in and for the said county, conservator or overseer for the preservation of salmon, and for enforcing for that pur-provisions of sect. 12 of the 24 & 25 Vict. c. 109 (The pose the provisions of the said Act, within the limit Salmon Fisheries Act, 1861):— of the jurisdiction of such justices, and was not otherwise the conservator of the said river which was partly in and bounded by the said county of Denbigh, but the place where the said trespasses and grievances were cominitted, and where the said fishing-nets and poles were placed, and fixed, and used was without the said county of Denbigh, to wit, in the county of Carnarvon, and not within the limits of the jurisdiction of the said justices. Demurrer thereto, and joinder in demurrer. Welsby (with him Horatio Lloyd), in support of the demurrer. That part of the plea which sets up the authority of the conservator is unnecessary, and, consistently with the allegations of the replication, the defendant had, under the 11th sect. of the 24 & 25 Vict. c. 109 (the Salmon Fisheries Act, 1861), a legal | right to do the acts complained of. The defendant, as one of the public, and even though not acting under the authority of the conservator, had a right to remove the stake-nets. Held, first, that though the salmon cage was fixed in the masonry of the dam, it was not a “fixed engine' within the meaning of sect. 11 of the above-mentioned Act: Held, secondly, that catching salmon with a net within a salmon cage that had been lawfully used for that purpose of old, the cage being within fifty yards below a dam, which had no fish-pass, came within the second division of sect. 12, and that a conviction founded thereon, was right. APPEAL from a conviction under sect. 12 of the 24 & 25 Vict. c. 109 (The Salmon Fisheries Act, 1861). By that section, "The following regulations shall be observed with respect to dams :—(1) No dam, except such fishing weirs and fishing milldams as are lawfully in use at the time of the passing of this Act, by virtue of a grant, or charter, or immemorial usage, shall be used for the purpose of catching or facilitating the catching of salmon (then certain penalties are set forth). And no fishing weir, although lawfully in use as aforesaid, shall be used for the purposes of catching salmon, unless it have therein such free gap as is herein Aspland argued in support of the replication. [MARTIN, B.-Why has not every one a right to do after mentioned; and no fishing milldam, although what the defendant did?] It would be a most mischievous doctrine to hold that any person may seize and take possession of nets as the defendant did. The temptation of converting the property to his own use would be very great. To entitle the defendant to do what he did, under the pretext of abating a nuisance, he must have sustained some especial inconvenience thereby ; 59. lawfully in use as aforesaid, shall be used for the purposes of catching salmon, unless it have attached thereto a fish-pass of such form and dimensions as shall be approved of by the Home Office; nor unless such fish-pass has constantly running through it such a flow of water as will enable salmon to pass up and down such pass; but so, nevertheless, that such pass shall not be larger nor deeper than requisite for the Mayor, &c., of Colchester v. Brooke, 15 L. J. Q. B. above purposes. (2.) No person shall catch, or attempt to catch, except by rod and line, any salmon in the The 11th sect. of the Salmon Fisheries Act, 1861, head race or tail race of any mill, or within fifty yards must be read in connection with the 33rd. [MARTIN, B.-I see no reason why we should add, after the word destroyed, "by the conservator."] The plea claims a right to do what was done, under the authority of the conservator, and, that being so, the defendant cannot show a right in any one. That would be a departure. [MARTIN, B.-He might say that the conservator stood by and directed him to do it.] THE COURT (Pollock, C.B., Martin, and Bramwell, BB.) unanimously gave below any dam, unless such mill or dam has attached thereto a fish-pass of such form and dimensious as may be approved by the Home Office, and such fish-pass has constantly running through it such a flow of water as will enable salmon to pass up and down it; and if any person acts in contravention of the foregoing provision" (then certain penalties). The case, as stated by two of the Justices of the Peace for the city of Chester, under the 20 & 21 Vict. c. 43, s. 2, disclosed the following facts : Ralph Moulton (the now appellant), and two others, Judgment for defendant. were summoned to appear before the Justices, "for that they, the said R. Moulton, &c., did, on the 26th day of May last, catch in the salmon cage, on the river Dee, in the city of Chester, and within fifty yards below a dam then existing, six salmon, otherwise than by rod and line, contrary to the provisions of sect. 12 of the 24 & 25 Vict. c. 109." It was proved by the complainant Wilby (the now respondent, who was a watcher for the Conservators of the river Dee), that on the said 26th May, defendants took, by means of a landing net, six salmon out of the salmon cage in which the fish were then impounded; that the salmon cage was within fifty yards below a fishing milldam (such as is mentioned in sect. 4 of the said Act), on the river Dee; that the said fishing milldam had not a fish-pass attached thereto, in accordance with sect. 12 of the 24 & 25 Vict. c. 109; that salmon had been taken in the same way before the passing of the said last-mentioned Act; that since the passing of the said Act, movable bars had been placed in the salmon cage; which bars, when up, constituted a clear opening for salmon to pass through the cage, both up and down, according to the provisions of sect. 22 of the said Act; and that the bars were up on the said 26th of May. For the defence it was proved by the defendant (the now appellant), and admitted by the complainant, that there was an ancient right of fishing in the aforesaid salmon cage by charter, grant, or immemorial usage, and that the defendant, but for the 24 & 25 Vict. c. 109, was entitled, as tenant to R.. Topham the owner of the fishery, to exercise that ancient right. From a plan annexed to the aforesaid case it appeared that the said weir or fishing milldam, to the masonry connected with which the salmon cage was attached, stood across the river Dee just above the Old Dee Bridge, beginning from the left bank, and stretching thence a few yards down the stream diagonally to the right shore of the river. At the lower end of this diagonal were the Dee Mills, belonging to Colonel Wrench, to whose ancestor the weir and mills at both its ends originally belonged. At the upper end of the diagonal were several mills, between which was a large water-wheel, and a floodgate for regulating the supply of water to the mills. Over this wheel, or through the flood-gate, the water flowed between solid masonry, till it reached the apex of the salmon cage, through the receding side bars of which the water flowed into the stream below. The fish, on ascending the river to spawn, enter the open space of this angular cage, and, passing through an opening at its apex, find themselves in a trap, from which there is no escape, unless they discover again the opening at the apex of the cage, or can force their way through the flood-gate when open. It was in this cage, or trap, that the salmon in question were taken by means of a net. Upon the above facts the Justices convicted the defendant, Moulton, of an offence against the said 12th sect., and adjudged him to pay a penalty, against which conviction and penalty he now appealed. M'Intyre, for the respondent.-The conviction was proper. The intention of the 24 & 25 Vict. c. 109, s. 12 (above set out), was that no one should fish with anything but a rod or line within fifty yards below a fishing weir or milldam, which this dam, wherewith the salmon cage is connected, undoubtedly is, unless such fishing weir or milldam was provided with the fish-pass rendered necessary by that section. It was found expressly that there was no gap in this dam, nor any fish-pass. Now, as the sole object of this salmon cage, which is part of this fishing weir or milldam, is the catching or facilitating the catching of salmon, and as before the passing of this Act it had been lawfully in use for that purpose, there can be no doubt that it comes within the second part of the first head of sect. 12, which declares that no fishing weir whatever shall be used for the purpose of catching salmon, unless it have a free gap, and that no fishing milldam whatever shall be used for that purpose, unless it have attached to it a proper fish-pass. Then, again, the fish were taken with a net within fifty yards below a dam which had no fish-pass attached to it, and that is directly contrary to the second head of sect. 12. The appellant seeks to exempt himself by making out that this cage is a fixed engine, and at the same time a part of the weir, and then arguing that it falls within sect. 11, which says that no fixed engine shall be placed or used for catching salmon in any inland or tidal waters, but provides that nothing in that section contained shall be deemed to apply to fishing weirs or fishing milldams. The intention of that proviso, no doubt, was to declare that no fishing weir or fishing milldam was to be regarded as a fixed engine. The 22nd sect. clearly shows what this is. It is a fishery bounded on every side by the dam. That dam is the only thing that makes it a fishery; and the fishery being connected with the dam makes it a fishing milldam. But this fishing milldam has no fish-pass. And, therefore, whether on the ground that the dam is used for facilitating the catching of fish that have got within the cage, or on the ground that the fish were caught by a net within fifty yards below a dam that has no fishpass, the conviction is equally valid, and should be upheld. Bevan, for the appellant.-This is an ancient mode of fishing, as mentioned in sect. 11. It is contended on the other side that this is a salmon cage, and the question is, whether this salmon cage is such an engine as comes within the Act? It is a fixed engine, fixed in the river within fifty yards of the mill-dam of Colonel Wrench. The milldam does not belong to the appellant, or to his tenant. He has not the power, therefore, to put in it a fish-pass. Neither can the dam be said to be a fishing milldam, for it is not connected by ownership with the fishery. [MARTIN, B.-But is not the fishery part of the dam? Would not the fish escape if it were not part of the dam ?] |