IX MOORE, 465
the case to warrant their Lordships departing from the language of the deed of
partnership. Whatever, therefore, the deed gives with reference to the ternis there
subpisting, will be given, and is conceded, with regard to the extended term. If
.persons to whom licences have been granted, or any of them, will renew their licences,
the Petitioner (Jerram) will be entitled to that benefit, but we do not see any r eami
for giving the right or power of substitiition beyond that which is given by the
deed of partnership. In point of form, probably, there should be an undertaking
by Dr. Normandy to concur in granting the licences to such personr to whoin
licences have already been granted, as will renew them. There will be no costs of
the present application.
LINDO 11. BARRETT [1856]
The following Order in Council was made upon the Committee’s report :-
“ It is liereby ordered, that the Right Honourable the Lord Chancellor upon
receipt hereof, do cause new Letters Patent, according to the term and effect of
this Order, t o be made and sealed, for su(*h parts of the [Jriited Kingdom of Great
Britain and Ireland, as the said original Letters Patent extended to and were
available i n , viz. fc,r England, ‘Pales, and the town of ‘!rr wick-upor! T w e d , f o r
‘ cc-rtain improvements in the manufacture of soap,’ as described in the [455] Ixtter.2
Patent granted to the said Alphonso Rknl. Le Mire de Normandy, for the furtlirr
terln of three years, from and after the expiration of the term granted in tlie said
original Letters Patent, provided that application be made to fix the seal to auch
new Letters Patent within three months from the date of this Order, and provided
also that an undertaking he given by the said Alphome Rknk Le Mire de Normandy
t o George Turner Jerram in the said new Letters Patent, all the terms, rights, and
privileges t o which the said George Turner Jerram and William Whitaker were
entitled under the original Letters Patent by the deed of dissolution of partner-
ship of the 7th of September, 1843, the partnership then subsisting between the
said George Turner Jerram and Williani Whitaker having been dissolved by mutual
consent on the 1st of January, 1848, whereof the Lord Chancellor and all other
persons whom i t may concern are to govern theniselves accordingly.”
[Mews’ Dig. tit. PATENT ; F. CONF[RMATION, RENEWAL, AND EXTEN~IOU o F LETTER^
PATEKT ; a. Generally-As to Partiter.]
[&6] O N APPEAL FROM THE SUPREME COURT O F JUDICATURE O F
JAMAICA.
ALEXANDER LINDO, ABRAHAM LINDO, and1 HENRY LINDO,-Appellants;
EDWARD MOULTON BARRETT,-Respondent * [Feb. 7, 13561.
Held not t o exempt an
absentee orrner of a public wharf at Jamaica from liability to be sued as a
public wharfinger, for negligence of his agent in the conduct of the m-harf.
Although the subject in dispute was under the appealable value prescribed by
che Royal Instructions, regulating appeals from Jamaica, yet the Judicial
Committee from the fact of the public importance of the question at issue,
allowed an appeal [9 Moo. P.C. 456, 4571.
Rule 1 of the Order in Council of the 13th of June, 1853 [Stat. R. and 0. Rer.
iv. 3051, allowing the Appellant costs upon a successful appeal, is discretionary
in the Court, and only to be allowed in special circumstances.
Up011
petition by Appellant f o r a Supplemental Order allowing costs, the Judicial
Committee refused to interfere.
Construction of the Jamaica Act, 7th Victoria, c. 57.
Upon a reversal, the Order in Council contained no direction as t o costs.
To entitle an Appellant to costs. application ought to be made at the hearing.
*Present: The Right Hon. T. I’emberton Leigh, the Right Hon. Sir Edward
Ryan, the Right Hon. Sir John Patteson, and the Right Hon. Sir William H. Maule.
371
IX MOORE, 467 LINDO v. BARRETT [1856]
In this case a nonsuit was entered by the Supreme Court of Jamaica in an action
brought by the Appellants against the Respondent. for negligence, who, in the first
instance, had obtained a verdict against him for &80 Is. Tlie question resolved
itself into one of con~truction of the Jamaica Act, 7 Vict., e. 57, entitled “ A n Act
of construction to regulate wharves and the rate of wharfage,” etc. The facts are
fully stated in the joint special earn hereinafter set forth. The Supreiiie Court
allowed an appeal to ~ n g l a ~ d , upon security being given for 3500, but as the
amount of the verdict was under 32300, the appealable value prescribed by the
48 No. of the Royal Instructions, [457] a petition was presented t o Her Majesty ill
Council praying for leave to appeal, notwithstanding the amount was under the
appealable value.
Xr. ahor^ or^, in support of the petition.--The Court below was favourable to
the appeal (June 21, 1855 *) ; the question as to the operation of the Island Statute,
7th Vict., e. 57, being the first which had been brought before that Court for
decision. Although the Court below had no power to grant leave to appeal, the
subject-matter involved being under the prescribed value, yeti this Court has jurisdic-
tion to admit it under Statute, 3rd and 4th Will. fV., c. 41. Spoonel. v. ~~&~~~~~
(6 &ore’s P.C. Cases, 257) was referred to.
Mr. G. Barrett opposed, and cited 1% re Havvey (3 Moore’s P.C. Cases, 148).
The Lord Justice Knight Bruce.--This appeal has received the s a ~ l c ~ ~ o ~ ~ of tlir
Supreme Court in the Island. The question involved i s one of iniportance to the
whole of the community of the Island of Jamaica. Leave will be granted, aiid
adhering to the general practice, security for costs in the usual amount, namely,
2300, must be entered into.
A joint special case (this was the first case under the Order in Council, dated the
13th of June, 1553 [Stat. R. and 0. Rev. 3051, in whicli a special case was agreed
upon and stated for the opinion of the Judicial ~ o m ~ i t t e e ) was subn~itted by the
parties [&8] for theopinion of their Lords~ips, and was in substance as foll~ws:---
The Respondent, before m d during the period of the accrual of the cause of
actioir ~ ~ e ~ . e ~ ~ a f t e ~ ” men ioned, was, and still is, the owner of a wharf called the
Trelawney x-harf, situate in the tonin and harlmur of ~ a i m ~ u t l i , in the County of
Comx-all, in the Islarid of Jamaica. This d r n r f was a public one, witliiri the mean-
ing of tile Statute Vtb Fict., e. 57. Thcb Respoildent before and during tlie period
aforesaid resided, and had continued to reside, in ~ n g l a n d , and did not perfornt
iii person any of the duties required by tlre above Act, but managed, carried on, and
conducted the business of the said wharf by an agent, who was paid by salary, and
R I I O perfornied, either by hiniself or by assistants, all the duties required of a
‘. wharfinger ” under that Act or otherwise; ellgaged arid disniissed the clerks,
liibourers, and other persons eniployed in and al30ut the wliarf ; and, in bibief, trana-
ilcted, as the known and recognised agent, of the Respondent, all the business of the
;\liar€. and accounted €or and paid over to him all the profits and proceeds.
The ~ p ~ ~ e ~ l ~ ~ ~ ~ t s are ~iierchants at ~ a l i ~ o u t ~ i aforesaid, and on the 7th of July,
1x53, sereral casks of brandy belongi to thein were warehoused at the wharf, in
tlie ordinary way of busitless, and r a 31ed there until the 1st of Map. 1854, when
they were reniorecl ; and it was alleged by the Appel lan~ that several of tlie casks,
ahile warehoused at the said wharf a h aforesaid, had been broached i i ~ several
places, and had lost a large portion of their contents, tlwougli the negligence of the
Res~onde~~t ‘ s agent.
For t h i s alleged loss the A p p e l l ~ ~ i t ~ comirenced against the Respuiident an
action on tlie case a 6 for [459] ilrgligeirce as a public wharfinger; the declaration
c~orrtained also a count iii trover; and the general issue being pleaded, and issue
joined thereoil, a verdict was found for tire Appellants for the1 value of the brand?
alleged to be lost, leave being reserved ta the lhfendant (the R e s ~ ~ ~ d e I ~ t ) to move
to enter a nonsuit, on the ground that he, being an alrnseiitee owner of a wliarf, could
* Present: The Right Hon. T. Peniberton Leigh, the Right N O ~ . the Lord
Justice Knight Bruce, the Right Hen. Sir Edward Ryan, the Right Hoti. the Lord
Justice Turner, and the Right Hon. Sir John Patteson.
3’12
~ - - I_ ___. - ____ __ - - I
LINDO v. ~ A R R ~ T T (r1856j IX XOOBE, 460
not be sued as a public wharfinger for alleged negligence in the conduct of his agent
acting in this Island as wl~arfiriger.
to enter a rtonsuit oil tlie almve ground, or
for a new trial, was obtained in the S erne Court, and after argument, so much of
i t i ls related to entering the nonsuit %as made absolute.
The reasons assigned by the Supreme Court for this judgment were as follows:-
-‘ In this case a rule was obtained to enter :I nonsuit oii a point raised at the trial,
viz, that under the Island Act of the 7th Yict., c. 5‘7, the Defendant, being 511 absentee,
could not. be a public wharfinger, in which capacity alone it is contended the
liability sought to be fired on the Defendant will arise, o r for a new trial, on the
irnproper receipt of a certificate of gauging given by one Borland, who, before
his death, was employed on the wlimf. The action is brouqht io recorer the value
of forty gallons of brandy found deficicnt in quarter casks and octaves whiclt l i d
been warehoused on the wharf of the Defelidant, who is the proprietor, situated i 1 i
Falmouth, the acting wharfinger being Mu. Wilcon.
“The rule for a nonsuit was supported oii the provisions of the Act to which
I have referred, which defines what shall he a public wharf, p rescr ib i~ i~ the E4601
duties which the wharfinger is to perform. and the object for which tliose duties are
to be p e r f o r ~ ~ ~ e d : aiid as they can only be doiie by him in person, i t was contended
that an absentee proprietor cannot be sued for any neglect of duty on his wharf, and
therefore the Plaintiff should be nonsuited.
“ On the pleadi1lg.s it is clear, that if tlie Defendant be not a public wharfinger,
or .vvirhixi the meaning of an Island Act, this action cannot Ire maintained, for there
is no evidence to show a bailment to support the second count; and it is clear, OII
tlie authority of Ross v. Johnson, that the trover, which is the third and last count,
c a n not be ma int a ined.
‘‘ Tlie becoud section of the Act definee what shall be a public wharf : and it
dedares, wheii the owner or person acting under him shall rweive payineat for any
oods landed on it, such wharf slid1 be taken t~ be a public wharf, to which all the
rovisions of this Act dial1 apply. The seventh section imposeR on every ~ ~ ~ i a r f i ~ ~ ~ e r
tlie duty of four times each year, on days specified, to rneke declarat,ior~ that the
accounts eiitered in his wharf ImoB I are true uiid just,’ and the entries so declared
shdl be recei.iued, deemed, arid takeii as good d i d evidence in d l m d every of the
several courts of law arid equity.’
*‘ Those surely are personal dutieh whicli ea11 d o n e be performed hy liiiii on whoiii
the law has impulxed them, and he can be iio other than the wharfinger. iii the actual
pt~,ssession and ~ ~ i ~ ~ ~ ~ a ~ e ~ i e ~ t of the wli rf. This would appear to be cleai from t l ~
portion of the section which require\ the declaration to he taken belore a Justice of
tlie peace of the parish wherein the wharf is situated; but wheri we see what the
Statute declares shall be the effect of the declaration, E4611 viz. that the books aild
accounts so verified shall be evidence viithout further proof in all Courts, and con-
sidsr to whst aa extent the rights and iiiterests of third parties may be bouiid by the
acts of kh0 wharfinger, i t is surely giving a safe and reasonable irtterpretation t o
this Statute to hold that lie only can Ine a public diarfinger who resides in the Island
and conducts the wharf, and he only can be responsible for neglect of duty, and
answerable for the penal provisions of this law, of which there are ninny, and I
vould refer to the 3rd, l l th , and 13th sections. This being our opinion, it is un-
i~eces6~ry to consider the points on which the rule was granted, in the alter~iative,
for a new trial ; yet we feel it would be cwrpixlg the ~ ~ p o I i s i ~ i l i ~ y of the priricipnI
to a dangerous extent to hold that the relation of irraster and servant existed txt,ween
tlte ~ e f e n d a ~ ~ i and Borland, so as to f ix tlie forrnea by an act of the latter in the
perforniarice of a duty which the VV1ial.f Act hiis imposed by the 4th section on the
vc.harfin,aer only, on request of the owner of tlie goods to be weighed or gauged. We
are not insensible of the difioulties pointed out t ~ s likelv to arise from the interpreta-
tion we have given to this Act, hit those are question8 for the Legislature arid not,
for us to deal with.”
In tlie October term, 1854, a rule i t
The question stated for the dsision of the Judicial Committee was-
Whether, having reference to the provisions of the above Act, the Respondent,
Ipi1lg Ru& 811 ahsentee oxnier and ana^^^ as aforesaid, was lilttile in law to 1)e sued
373
IX lKooRE, 462 LINDO ‘u. BARRETT [18561
as a public Ixharfinger for the alleged negligence of his agent in the conduct of
the uharf.
If the Sudicial Committee should be of opinion that lie was so liable, the judgment
of nonsuit, was to be set [$@I aside. If it should be of q i n i o u that he was not, the
appeal was to be disnlissed.
MI*. Ketltiug, Q.C., and Mr. M c ~ ~ ~ ~ ~ o r ~ , in supportt of the appeal.--The Island
Statute, 7th Vrct., c. 57, does not deprive the Appellants of their coninion law right
of action for negligence occasioned by the Bekpondeiit’s agent, he being a public
wharfinger.
The Court stopped them, and called upon the Respondent to support the judgment
of the Court below.
Mr. Montagu Smith, Q.C., and Mr. G. Uarrett, for the Respondent.-~l~e j u d g i ~ e ~ t
was well founded, as by the Island Statute, 7th Vict., c. 57, the Reqondent could
on$ be liable as a wharfinger to a i l action for negligence when in the actual posses-
sion aiid i ~ i ~ ~ r ~ a g e ~ ~ ~ e ~ i t of the wliarf. Here, it is not disputed that lie was an absentee.
+Sir W. H. Maule: The action is brou@t for not perforniing a duty imposed on
the wharfinger, who is represented by tiis agent.]-The agent is acting only as a
keeper of M puMic wIiarf.-[Sir W. H. Naule: 1 cannot find that the Island Statute
relied xigtoril, relieves the principal or his agent of his liability a t coninion 1 a w . j
They referred to ~ ~ e ~ c ~ Z ~ v. ~ ~ ~ f ~ / e ~ . ? ~ ~ ~ / ~ v / ? (21- Law Rep., 314).
This is apparent from the 11th and 16th sections of that Statute.
The Itight Hon. T. Pemberton Leigh.--Tlieir Ilordships are of opinion, havrlig
regard to the provisions of tlie Island Statute /7 Viet. c. 57 (Jamaica)] that tlie
judg-[463]-rnmt of the Court below cannot be sustained, and must be reversed, as
they corrsider the Respondent liahle to he sued, and, therefore, will order &he jtidg-
riient of nonsuit to be set aside. They fully approve of the mode in which the special
case has heen prepared and presented to them.
By the Order in Council made u p u the appeal, it was ordered axid directed
that the judgment of nonsuit entered against tlie Appellants in the Supreme
Court of Judicature of Jamaica in the October term, 1854, be set aside; 1)ut no
directions vere given as to costs of appeal. The Order in Couiicil mas transmitted
to Jamaica by the Appellants’ agent in due course.
A petition was afterwards presented (9th July, 1856 *> by the Appellauts, pray-
iitg that the jud~ineii t tilight be aiiierrded by ordering tlie A~pel lants their costs,
or that an i t~d~~pendent o r supple~i~enta~ Order for the costs of the appeal might be
granted to them This petitiori alleged that LIO direction was contained in the
Order in Council with respect to costs, and that absence of such direction arose frarn
the Appellants’ impression that their Lordsliips did not mean to interfere w ith
their right to corts as given by the Order in Council of the 13th of June,
1853 (IXula I. 7 Xoore’s P.C. Cases, p. ix. [See Stat. R. and 0. Rev. vol. iv. p. 306]),
they having succeeded in their appeal: that there was no intimation at
the Iiearirrg to deprive them of their costs, and that they Bere as of
right entitled to thein under [4M] such Order without any special a ~ ) ~ ~ l i c a t i o n f r
the same. That the Order reversing the j u d g ~ n ~ ~ n t was debe red from the Council
Office to the offre of the Appellants’ solicitor on the evening of the 26th of February,
1856, during their absence from town, and was on the following day transrtiitted
to Janiaica for service, aiid had riot yet heen returned ; and they insisted that they
aere entitled to costs as of right, independent of any supplemental Order, submit-
t ing that i t would be contrary to the letter and spirit of the Order in Council of
the 13th of June, 1853, not to allow costh.
Mr. MrMalion, for the Petitioners.- Tliis application is founded upon tlie first
rule of the Order i u Council of the 13th of June, 1853, which directs that if the
Appellant succeeds ill reversing a decree, or judgment, he shall be entitled to
xecover h i s costs of appeal against the l~espo~ident, ur11ess the Commit~ee otherwise
direct. Here there was no direction against allowing costs, and, therefore, costs
ought, to have been allowed by the Order i n Couiicil as of right. So it is at Coniinon
law, costs wodd be allowed.-[He was stopped, the Court calling upon the Respond-
ent to show cause why the Appellants should not have their costs.]
* Present: The Right Hon. T. Penherton Leigh, the Right Hon. S i r Edward
Ryan, and the Right Hon. Sir William H. Maule.
-- I ~- I ” - _ _ I - -
374
DE BRETTES 1). GOODMAN [1855] IX MOORE, 465
Mr. blontagu Smith, Q.C., aiid Mr. 1:. Barrett, for tlre Respondent, argued,
that the Court had now 110 jurisdiction to award costs, and that to entitle a success-
ful Appellant to costs as against the Respondent, he must apply at the hearing, it
being a matter of discretion in the Conmiittee to allow or not costs. Xoreover,
E4651 they urged that the Order in Council upon the appeal had been acted upon
in Jamaica.
The Right %Ion. T. Pemberton Leigh :--Their Lordships will make nn Order
upon this petition. The rule which has been referred to is merely a regulation
describing the course of practice which is to form the guidance of the Lords of the
Committee, in giving or refusing costs. The effect of that rule is, that if tlie judg-
ment of the Court below is reversed, the Appellant is to have his costs, but then he
must ask for those costs; and if he does not ask for them, the Order in Council is
merely to reverse.
I n this case, their ~ o r d s I ~ i p s are not at all satisfied that costs ought riot to have
been given, and that if asked for, they would not have given them. Although.
Iiovvewr, the rule is general, there must‘ be special circumstances, and that would
be a matter to be discussed at the time; it is impossible nov, after the matter has
been disposed of, and the Order in Council acted upon, to grant costs.
Upon the whole. their Lordships are of opinioii, that they can inake no Order.
[News’ Dig. tit. COLONY: 111. AwEAuAs T o PRIVY C~IJNCII,: 3 Leave to App~d,--
~ n t ~ ~ r t ~ n ~ ~ of Q ~ P s ~ i ~ , - ~ ~ ~ b r n ini*olwrl below ~ ~ p e ~ ~ f f b ~ ~ Amount, 6 Pvartict.,
-Public WJLarfs. On point as to (i.) costs of GhotayTd v. Mandckclrzcnd am?
Rmisreechumd, 1866, 10 Moo. P.C. 139; (ii.) special leave to appeal in civil
cases, see note to RetPmeyrr 17. O b r r t n d e r , 1837, 2 Moo. P.C. at p. 125. As
to appeals froni Jamaica, sech 0. in C. of 14th April, 1851 (Stat. R. and 0.
Rev. iv. 33 L).]
n. C l J S f S : tit. W A R E H O ~ ~ S E M E ~ , ~ ~ ~ A ~ ~ I N G E R A D WHARF, 1. WH-4RF
[&6] OK APPEAL FROM TEE S ~ ~ 1 ~ E ~ ~ ~ CIIrIL COURT OF APPEAL
OF TEIE I s u m OF SSIXT LVCIA.
CHARLES DE BRETTES,-A~?~clln7~; JOHN GOODMAN, E E N R Y PHYCE, arid
CHARLES MUREAT PAL^^^, ~ ~ s ? ~ o ? z ~ e r ~ f s * [18tli and 19th June, 18551.
Uiider a judicial sale of real estate in St. Lucia, Z. professing to act as attorney
for W. and wife, resident in Fraiioe, purchased the estate on their behalf.
The purchase-money was to be paid, according to the Ordinancc of the 22nd
of January, 1833, by instalnients, and D. becaiiie surety, ~ 1 % soZ?do, for pay-
ruent of the second i i ~ s ~ a l ~ ~ e I ~ t . The deed of a i . r a ~ i ~ e n ~ e l ~ t for the pnrcliase,
and tlie notarial deed was executed by oiie of the trustees, who was resident
~ I I the Coloiiy, and by such deed it was stipulated that tlie sale sliouid lie
confirmed aiid ratified by h i s two trustees resident in Eiiglaiid within six
months. By a deed poll, tile sale to W. and his wife was ~ o n f i r ~ ~ i e d an
ratified bj- the trustees i n E n ~ l a n ( ~ . Pefault was made in payment of the
second instalmerit, when the trustcw brouzht an action against, D. as suretF
for the aiiiount of the second iiistaltiwnt. It was afterwards discovered
that the power of attorney to L. was confined to W. alone, and contained no
authority from his wife, alien tlie trustees discliarged the n ife from the
contract. Held, that D. WBS not liable as surety, as tlie sale professed to be
to W. and wife by the three trustees, while in fact tlie sale was to W, onl),
arid as fiurh was an ineffectual and void sale.
her by the French law in force in St. Lucia, D’s liability as surety
v T ~ ~ ~ , was not effectual as agaiiist W.’s acts, p o a d the wi fe?
- - . I. - - . ____ __ __ __ - _. .- -
* Preseiit: The Right Hon. T. Pemberton Leigh, the Riglit Hon. the Lord
Justice Knight Bruce, and the Right Hon. the Lord Justice Turner.
375
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