tract, for the amount of freight so earned.

Indeed, as it has

been already said, the master, in thus taking other goods to freight, will be presumed, unless the contrary distinctly appear, to have acted on behalf and for the benefit of the charterer, and will be held accountable to him accordingly.

Nor can either the owner or the master of a vessel wholly chartered place on board goods of his own, or to be carried on his own account, without the special permission of the freighter; and although in one case Lord Ellenborough seemed to think, and so directed the jury, that such a privilege claimed by the master might, to a reasonable extent, be supported by proof of general usage, and might be taken as an implied qualification of the generality of the charter-party, yet such a doctrine cannot but be considered as both questionable in principle, and of dangerous tendency in practice.1 When claimed or required, the privilege ought to be, and commonly is, reserved by express stipulation in the charterparty.

2

The assertion of a writer on maritime law, that if the freighter having stipulated to load a full cargo decline or be unable to furnish more than a partial one, the owner or master may annul the contract, and even unlade such goods as have been placed on board, seems to be as untenable in law as it would be mischievous and absurd in practice.

2. The owner is bound to have the vessel ready for the reception of cargo, and to receive it on board according to the terms of his engagement. If the covenant on his part be absolute, he must tender his vessel for loading at the place appointed, even though the covenant on the freighter's part be optional, and he have reason to suppose that no cargo will be furnished. Of this the case before cited of the vessel chartered for Madeira and Winyaw, in South Carolina, affords a plain example. The day fixed for the arrival at Winyaw was the 1st of March; after that time the freighters' agents

1 The case alluded to is that of Donaldson v. Forster, mentioned in Ab. on Sh. 209. One of the special jurors, it seems, dissented from his Lordship's doctrine, and could not be prevailed upon to concur with the rest, so that no verdict was pronounced. It would be thought a strange custom for the driver of a coach, hired for a job, to set up, that he was entitled to the use of the inside pockets for himself. 2 Molloy, book ii. ch. 4, s. 3.

might or not, at their option, accept the ship for a cargo: the master having been unavoidably delayed, and finding it impossible to reach Winyaw by the 1st of March, directed the voyage elsewhere, and pleaded the impossibility in answer to an action brought by the freighter for not tendering the vessel for a cargo at Winyaw according to his covenant; but it was held, as may be supposed, that these facts constituted no defence, and that he was bound to have sailed thither, so as to give the merchant an opportunity of loading the vessel if he thought fit.

3. If a cargo be not ready at the time appointed, the owner is not bound to wait beyond the specified number of lay-days, unless he has agreed by the charter-party that the freighter may keep the vessel on demurrage for an extended term. It is, however, the usual and prudent course for the owner, if a moderate delay only may be anticipated, to wait the convenience of the freighter, trusting to his personal liability to pay the loss and charges occasioned by the detention.

4. The manner in which the shipment of goods, whether under charter-party or general, is made, varies with the usage of particular ports; the conveyance from the quay or wharf to the vessel being sometimes at the charge of the freighter, sometimes at that of the owner. The responsibility of the owner commences of course from the time at which the goods are considered as being under his charge, and in all cases, when once on board, the owner becomes immediately answerable for their safety, and is bound to make good losses which may happen, without fault on his part, from theft or violence, whilst the vessel is lying along the quay or in the river.

5. The business of taking in and stowing the goods belongs to the master, and for any accident which may happen in so doing he or the owner is responsible to the shipper. In stowing care must be taken to provide proper dunnage (pieces of wood so disposed as to prevent undue pressure of casks, &c.), and to arrange the several articles as may best preserve them from injury, and least interfere with the free working of the vessel.

6. It is usual to obtain a receipt for all goods, as they are shipped, signed by the mate or other person in charge. This receipt is the foundation of the subsequent bill of lading, and

no prudent master will give a bill of lading without the production and return of the receipt. When the lading is complete, the master formally signs, and it is an indispensable part of his duty to sign, bills of lading, consisting always of three, and not uncommonly of four parts, of which he retains one for his own security, and delivers the others to the freighter. In the making out of this important document, the directions of the shipper, or rather of the holder of the receipt,1 are to be followed as regards the parties to whom the goods are to be deliverable, and the master is not bound by the description therein given of the goods as to quantity or quality further than as both are indicated by the exterior appearance, or the representations of the shipper; though for greater security in this respect, it is a customary precaution to add to the general description some qualifying words, as " contents unknown," or the like.

And so much for the obligations resulting from the contract of affreightment as they concern the shipment in our next they will be examined as they concern the carriage and delivery.

L.

1 Craven v. Ryder, 6 Taunt. 433.

ART. V.-COSTS IN TRESPASS TO REAL PROPERTY.

AN important and unexpected effect of the new Pleading Rules, (unexpected at least by the profession generally, though we may not say by the learned persons who framed them,) has been the introduction of a new law of costs, in cases of petty trespass to real property. To make the subject intelligible to our readers, it is necessary to state shortly the operation of the several statutes relating to it, as they stood limited by the authority of the decided cases, before the new rules took effect.

The 43 Eliz. c. 6, in the first place enacted, that if in any personal action, to be brought in any of the Courts at Westminster, not being for any title or interest in lands, nor con

cerning the freehold or inheritance of any lands, nor for any battery, it should appear to the judges of the same Court, and be so signified by the justices before whom the same should be tried, that the debt or damages to be recovered therein should not amount to the sum of 40s., in every such case, the judges or justices before whom such action should be pursued should not award to the plaintiff any more costs than the sum of the debt or damages so recovered should amount to, but less at their discretion.

The effect of this enactment, as construed by the cases, was to preclude the plaintiff from having judgment for a greater amount of costs than damages, in all cases of trespass to real property except those included in the excepting words which we have marked in italics, where the jury found less damages than 40s., and the judge so certified to the Court out of which the record came. In the absence of such certificate, the plaintiff was entitled to full costs. But as it was found that this provision was inadequate to its object—the repression of expensive litigation for petty injuries, the stat. of the 22 & 23 Car. 2, c. 9, was passed, which, "for prevention of trivial and vexatious suits in law, whereby many good subjects of this realm had been, and were, daily undone, contrary to the intention of the act of Queen Elizabeth," enacted, for making the said law effectual, that in all actions of trespass, assault and battery, and other personal actions, wherein the judge at the trial of the cause should not find, and certify under his hand upon the back of the record, that an assault and battery was sufficiently proved by the plaintiff against the defendant, or that the freehold or title of the land mentioned in the plaintiff's declaration was chiefly in question, the plaintiff in such action, in case the jury should find the damages to be under 40s., should not recover or obtain more costs of suit than the damages so found should amount to; and if any more costs should be awarded, the judgment should be void. The obvious intention and plain construction of this act was, to deprive the plaintiff of costs of increase in the same cases of trespass provided for by the statute of Elizabeth, not (as under that statute) if the judge certified in favour of the defendant, but unless he certified in favour of the plaintiff. It made, in fact,

the whole title of the plaintiff to costs, even in the excepted cases of the former statute, to depend upon the certificate of the judge in his favour: in cases of trespass not falling within those exceptions, it barred the plaintiff of costs absolutely and irremediably. Such, we say, seemed the plain construction of the law. But the Courts forthwith set about evading it; and by the constraining force of successive decisions, at length succeeded in restricting its beneficial operation altogether to the first class of cases of trespass we have just referred to— those, namely, falling within the excepting words in the statute of Elizabeth, and as to which that statute was wholly inoperative. And further, they made the right to costs to depend, not on the certificate of the judge, but on the terms of the record, wherever it could be collected from them that the case did not fall within the statute, as judicially interpreted. So that, wherever there was a special plea to an action of trespass to real property, whatever its nature, which was found against the defendant-nay, even where it was found for him, but an issue of not guilty on a new assignment was found for the plaintiff (which might be by reason of the slightest excess), the plaintiff was held entitled to full costs; because, said the Court, the record must show, in every such case, either that the title or freehold of the land did come in question, in which case a certificate is superfluous, or that it could not, in which case the statute does not give the power of certifying.1 The Courts, in some later cases, made one or two attempts to escape to a sounder construction, but in vain: and the consequence was, that scarcely in any case of trespass whatever, unless there was no plea on the record but that of not guilty, which might or might not put the title or freehold in issue-a point which could not be ascertained otherwise than by the certificate of the judge-could a defendant have the benefit of the statute: the very cases most requiring its application, those cases, namely, of trivial and temporary injury, in which no bonâ fide question of title could arise, being effectually excluded from its benefit, wherever the defendant had any excuse to plead for the commission of it. And where he had none, the certificate of the judge would ex

1 It is not necessary to specify the cases; they are collected in Hullock on Costs, p. 85, et seq., and 1 Saund. 300, note (ƒ).