Eng. Rep.]

is proved by proving the nature of his employment, or in other words the law in such a case without proof implies it." In Gibson v. Small, 4 H. L. 404, in explaining the reason why in a voyage policy of insurance there was an implied condition that the ship was seaworthy as much when the insurance is on goods as when on the vessel, Parke B., says the shipowner "contracts with every shipper of goods that he will do so," (i. e., make the ship seaworthy). "The shipper of goods has a right to expect a seaworthy ship, and may sue the shipowner if it is not. Hence, the usual course being that the assured can and may secure the seaworthiness of the ship either directly, if he is the owner, or indirectly if he is the shipper, it is by no means unreasonable to imply such a contract in a policy on a ship on a voyage, and so the law most clearly has implied it." It appears from this that this most learned judge thought it clear that the undertaking of the shipowner to the shipper of goods as to seaworthiness is co-extensive with the undertaking of the goodsowner to his insurer I am certainly not aware of any case in which the question has arisen whether there is a similar warranty between a shipowner and a passenger; but it seems to me that every reason that can be urged in favour of the warranty, applies as much to the one case as the other. The passenger trusts to the shipowner to select a proper ship as much as the shipper of goods does; and all those circumstances exist which induced Valin (in the passage cited in Abbot on Shipping) to say that the shipowner, from the nature of his contract, was "necessarily bound to furnish a ship good and sufficient for the voyage;" or, as Lord Ellenborough says in Lyon v. Mells, that his promise so to do is proved by proving the nature of his employment. Indeed, in the very probable case of a person shipping merchandise by the same vessel in which he himself takes his passage, it would seem rather extraordinary if the law were to hold that, as far as the goods were concerned there was an implied undertaking to furnish a seaworthy ship; but, as regarded the personal safety of the passenger, there was none. It is true that the carrier of goods is an insurer, except against certain excepted perils, and that the carrier of passengers is not; but the question whether the carrier of goods is bound at his peril to supply a seaworthy vessel, can only arise where the immediate cause of the loss is an excepted peril, or for some other reason the contract to insure does not apply.

Assuming then that there is such a warranty implied where the carriage is to be by water, is there any difference when the carriage is by land? The principle which I understood to be laid down in Brown v. Edgington, 2 M. & G. 279, is this, that where one party to a contract engages to select and supply an article for a particular purpose, and the other party had nothing to do with the selection, but relies entirely upon the party who supplies; it is to be taken as part of the contract, implied by law, that the supplier warrants the reasonable sufficiency of the article for that purpose; and I think Lyon v. Mells lays down a very similar principle as generally applicable, though the particular instance was that of a lighterman. If this principle be a general one, it applies equally to the

[Eng. Rep.

case of the shipowner supplying a ship, and the carrier by land supplying a vehicle, whether it is supplied for the carriage of goods or passengers. In Brass v. Maitland, 6 E. & B. 470, 4 W. R. 647, this principle was much discussed. I think the effect of the reasoning of the judgment of Lord Campbell and Wightman, J., shows that in their opinion this is a general principle of law; whilst the effect of the judgment of Crompton, J., is such as to show that he did not think the principle general, and was not inclined to carry it further than the decisions had already gone. My respect for his opinion is very great, and if ever the question whether there is such a general principle of law should come before me in a court of error, I should endeavour to consider it carefully as an open question without being too much biassed by my present impression in favour of it; but sitting here in the same Court in which that case was decided, I am bound to consider the decision of the majority right, and to act upon it as far as it bears on the present question. The authorities on the very point now before us are not numerous. In Israel v. Clarke, 4 Esp. 259, Lord Ellenborough is reported to have said that the carriers of passengers by land were bound by law to provide sufficient carriages for the safe conveyance of the public who had occasion to travel by them; at all events he would expect a clear landworthiness in the carriage itself to be established." This seems to show that in his opinion the doctrine which in Lyon v. Mells was laid down as to the persons furnishing lighters for the conveyance of goods was applicable to those furnishing carriages by land for the conveyance of passengers, and that they were bound at their peril to provide vehicles in fact reasonably sufficient for the purpose. And in Bremner v. Williams, 1 C. & P. 414, Chief Justice Best is reported to have ruled the same way.

These

are, it is true, only nisi prius decisions, and neither reporter has such a character for intelligence and accuracy as to make it at all certain that the facts are correctly stated, or that the opinion of the judge was rightly understood. On the other hand, in Christie v. Griggs, 2 Camp. 79, Chief Justice Mansfield told the jury that "if the axletree was sound, as far as human eye could discover, the defendant was not liable. There was a difference between a contract to carry goods and a contract to carry passengers. For the goods the carrier was answerable at all events. But he did not warrant the safety of the passengers. His undertaking as to them

went no further than this, that as far as human care and foresight could go he would provide for their safe conveyance. Therefore if the breaking down of the carriage was purely accidental, the plaintiff had no remedy for the misfortune he had encountered," and we may depend upon the accuracy of this reporter. Chief Justice Mansfield here does not very accurately distinguish between the possible view of the case that the misforfune might have arisen though the vehicle was reasonably fit for the journey, and so be purely accidental, and the possible view that the accident and the circumstances attending it showed that the coach could not in fact have been reasonably fit for the journey; but on the whole I think it must be

Eng. Rep.]

taken that he thought there was no warranty, such as would make the coach-proprietor liable for a latent defect in the coach, but this was only an opinion at nisi prius.

In Sharp v. Grey, 9 Bing. 457, Tindal, C. J., is stated in the report in Bingham to have directed the jury to consider whether there had been that degree of vigilance which was required by his engagement to carry the plaintiff safely, which leaves it in doubt whether he told the jury that the defendant was bound at his peril to provide a fit vehicle, a failure to fulfil which duty would be properly described in the declaration as negligence, and left it to them to say if it was in fact reasonably fit; or whether he left it to the jury to say whether he had not neglected some reasonably practicable means of ascertaining its fitness; but the counsel, in moving for a new trial, treat it as a direction that the defendant would be responsible, though he had conducted his business with all the caution that could be reasonably required; and the judges, in refusing the rule, all appear to have so understood the ruling, and to hold it right.

I have already said that on the balance of reasoning I am inclined to think that such ought to be the view; but at present, sitting in a court of co-ordinate jurisdiction with the Common Pleas, I think it enough that the decision is in point.

In an American case, Ingalls v. Bills, 9 Met. 1, given at length in the editor's note to Story on Bailments, sec. 592, 7th edition, page 565, the court, after considering the English cases, came to the conclusion opposite to that which I have come to, expressly stating that they do not agree with the opinion of the Court of Common Pleas in Sharp v. Grey, if it is understood as I think it must be. It will be very fit, if the case at first is taken into a Court of Error, that the reasoning of the American court should be carefully and respectfully considered; and if it appears to the Court of Error satisfactory, they may act upon it, and overrule the case of Sharp v. Grey. But it is clear that we in the Court of Queen's Bench cannot treat the American decision as an authority to be placed on the same footing as the decision of the Court of Common Pleas.

The judgment in this case has been delayed until the argument in a case of Ilands v. London, Chatham ad Dover Railway was heard, as it was anticipated that a similar point might arise in that case; but it was not necessary to decide it. I think that the Irish case of Burns v. Cork and Bandon Railway Company, 13 Ir. Com. Law Rep. 513, really throws no light upon the point before us. In that case a plea was pleaded, which was clearly intended to raise the very point before us, and which I own I should myself have thought did raise it. The Irish Court of Exchequer, in giving judgment against the plea, say that if there is a warranty the plea was clearly bad; and that even if there was only a duty to take every care, the plea did not sufficiently show the fulfilment of that duty, and was therefore bad. Probably the court were not agreed on the question, and intended to avoid expressing any opinion on it, though I should rather conjecture, from the language used, that the learned judge who wrote the judgment inclined to the opinion that there was a warranty.

[Eng. Rep.

I have only to add that I do not think that the duty to supply a seaworthy ship, or a sufficient vehicle by land, is equivalent to a duty to provide one perfect, and such as never can, without some extraordinary peril, break down, which would have the effect of making the carrier an insurer against all losses arising from any failure in the vehicle which cannot be shown to arise from some unusual accident. I had occasion, in the case of Burges v. Wickham, 3 B. & S. 669, 11 W. R. 992, to consider what was the meaning of the term " seaworthy" as applied to a ship, and I see no reason to change the opinion which I then expressed, that it meant no more than that degree of fitness which it would be usual and prudent to require at the commencement of the adventure; and applying a similar principle to a land journey, I agree with what I understand to have been the direction of Erle, C. J., in Ford v. London and South-Western Railway Company, 2 F. & F. 732, that the railway company were not bound to have a carriage made in the best of all possible ways, but sufficiently fulfilled their duty by providing a carriage such as was found in practical use to be sufficient. In other words, I understand that the obligation to be not to furnish a perfect vehicle, but one reasonably sufficient. But in the present case the carriage was not such as to be reasonably sufficient. Had the parties who sent it out known of the existence of this defect in the tire there would have been strong ground for accusing them of manslaughter if death had ensued. They did not know it and could not discover it till the tire broke, and they are therefore free from all moral blame or criminal responsibility.

The question therefore is distinctly raised, whether the obligation of the carrier of passengers to the passenger is merely to take every precaution to procure a vehicle reasonably sufficient for the service whether by sea or by land, in which case the direction was right, or whether it is, as I think, an absolute obligation at his peril to supply one, or be responsible for any damage resulting from a defect. Taking the view of the law which I do, I think the rule for a new trial ought to be made absolute; but the majority of the Court being of a different opinion it must be discharged.

An action is not maintainable for malicious prosecution where the plaintiff has been convicted, and the conviction is outstanding, although there is no power of appeal from the Court where the conviction took place.

[C. P. 15 W. R. 839.] Declaration. That the defendant falsely and maliciously, and without reasonable and probable cause, appeared before a justice of the peace, and charged the plaintiff with assaulting the defendant contrary to the statute, and by scandalous and malicious statements caused the said

justice to convict the plaintiff of the supposed offence, and to fine him, which fine the plaintiff was obliged to pay, there being no appeal.

Demurrer.

Beresford in support of the demurrer, contended that the declaration was without precedent. He cited Barber v. Lissiter, 29 L. J. C. P. 161. [He was then stopped by the Court.]

C. W. Wood, in support of the declaration, contended that it was good, because, although it averred that the plaintiff was convicted, it also alleged that there was no Court of Appeal to which the plaintiff could apply in order to have the conviction reversed. He cited Whitworth v. Hall, 2 B. & Ad. 695; Mellor v. Baddeley, 2 C. & M. 675; Fitzjohn v. Mackinder, 29 L. J. C. P. 167, 8 W. R. 341; Steward v. Gromett, 29 L. J. C. P. 170; Churchill v. Siggers, 23 L. J. Q. B. 308, 2 W. R. 551; Venafra v. Johnson, 10 Bing. 301.

BYLES, J.-We should be disturbing previous cases if we doubted that criminal proceedings must have terminated before the civil action is commenced. The fact that there is no appeal from the criminal court makes no difference.

KEATING, J., concurred.

SMITH, J.-In Castrique v. Behrens, 30 L. J. Q. B. 162, the Court says, "There is no doubt on principle and on the authorities that an action lies for maliciously, and without reasonable and probable cause, setting the laws of this country in motion to the damage of the plaintiff; but in such a case it is essential to show that the proceeding alleged to be instituted maliciously, and without probable cause, has terminated in favour of the plaintiff, if from its nature it be capable of such a termination." Mr. Wood says that this case is distinguishable because here there was no court of appeal from the criminal court, but if we gave judgment for the plaintiff in this case we should be establishing a court of appeal where the Legislature has said there should be none. The decision of the magistrates is binding, and when they have decided a case it is not open to the plaintiff to impeach their judgment by a civil action.

Judgment for the defendant.

The declaration stated that the defendants unlawfully kept a dog of a fierce and mischievous nature, well knowing that the said dog was of a fierce and mischievous nature and accustomed to bite mankind and that the said dog, whilst the defendants so kept the same, attacked and bit the plaintiff, whereby the plaintiff was wounded, &c., and was prevented from carrying on his business, and incurred expense for medical and other attendance, &c.

The defendants pleaded,-first, not guilty, secondly, that they at the said time when, &c., carefully and properly kept the said dog chained

*The words in italics were added by way of amendment, at nisi prius.

[Eng. Rep.

up on their own land for the protection of their property, and that the plaintiff at the said time when, &c., was trespassing on the said land without leave of the defendants,-thirdly, a similar plea, but alleging that the plaintiff, having notice of the premises, carelessly, negligently, and improperly went near to the said dog, and that the injury complained of was caused by his own negligence and want of due and proper care. Issue.

The cause was tried before Willes, J., at the last summer assizes at Hertford. It appeared that the defendants, who were engravers and watch-dial finishers, in the neighbourhood of Clerkenwell, had their work-shops and countinghouse in a paved yard having an entrance in the public street which was common to two or three other tenants of premises in the same yard; that, for the protection of their property, the defendants kept a dog, which was chained to a kennel, at one side of the yard; that the yard was about twenty feet wide, and the chain about seven feet long; that the plaintiff was going across the yard towards one of the workshops, when the dog attacked and severely bit him in the arm.

The dog had been purchased by the defendants on the 5th of June, 1865, and the injury to the plaintiff was on the 17th of July in the same year.

There was no evidence that the dog had ever before bitten any person; but it was proved that he had uniformly exhibited a ferocious disposition, by rushing out of his kennel when any stranger passed, and jumping up as far as the chain would allow him, barking and trying to bite. One of the other tenants in the yard, who spoke to the savage disposition of the dog, also said he had complained to the defendants about it, and told them that the dog should be more closely secured: but on cross-examination would not say whether this was before or after the injury had been inflicted on the plaintiff.

On the part of the defendants it was submitted that there was no evidence that the animal was ferocious and accustomed to bite, and, at all events, none that the defendants knew he had such a propensity.

The learned judge left it to the jury to say whether or not the dog was of a savage and dangerous disposition, and whether the defendants were aware of it and neglected to take due precautions to guard against injury to persons lawfully coming upon the premises.

The jury returned a verdict for the plaintiff, damages £10.

The siger, pursuant to leave reserved to him at the trial, moved to enter a verdict for the defendants or a nonsuit. In order to sustain an action of this sort, the plaintiff is bound to prove that the dog is of a savage and ferocious disposition, and that the defendant had notice thereof: Com. Dig. * In Beck and Wife v. Dyson, 4 Camp. 198, it was held not to be sufficient to shew that the dog was of a fierce and savage disposition, and usually tied up by the defendant, without proving that he had before bitten some one.

[BYLES, J.-In Judge v. Cox, 1 Stark. 285, it was ruled by Abbott, C J., that, in an action for negligently keeping a dog, proof that the defen

Action upon the case for negligence (A. 5).

Eng. Rep.]

dant had warned a person to beware of the dog lest he should be bitten, was evidence to go to a jury in support of the allegation that the dog was accustomed to bite mankind.

ERLE, C. J.-It was not necessary to prove that the dog had actually bitten another person. If the evidence shewed the animal to be of a fierce and savage nature, that it had on former occasions evinced an inclination to hite, that will be enough to sustain the action ]

There was no evidence whatever in this case to shew that the defendants, who had only had the dog in their possession a few weeks. knew that it was ferocious. In Hartley v. Harriman, 1 B. & A. 620, an averment in a declaration that the defendant's dogs were accustomed to worry and bite sheep and lambs, was held not to be supported by proof that they were of a ferocious and mischievous disposition, and that they had frequently attacked men: Holroyd, J. saying: "If the allegation as to the habit of these dogs were struck out of the declaration, a sufficient cause of action would not remain. Then it follows that it is material, and absolutely necessary to be proved. And it will not do to prove another fact, which, if inserted in the declaration instead of this, might have been quite sufficient to support the action; for, the allegation itself must be proved"

ERLE, C. J.-I am of opinion that there should be no rule. Although there was no evidence that the dog had ever before bitten any one, it was proved that he uniformly made every effort in his power to get at any stranger who passed by, and was only restrained by the chain. There was abundant evidence to shew that the defendants were aware of the animal's ferocity: and, if so, they were clearly responsible for the damage the plaintiff had sustained.

WILLES, J.-There was evidence that the dog was in the habit of jumping at every one who passed his kennel, endeavouring to bite, and that the defendants knew it. It is true that he did not appear to have succeeded in biting any person until he unfortunately caught the plaintiff. The defendants admitted that the dog was purchased for the protection of their premises Unless of a fierce nature, he would hardly have been useful for that purpose.

BYLES, J. and KEATING, J., concurred.

Rule refused.

GENERAL CORRESPONDENCE.

Is the interest of a person in Crown Lands before patent issues saleable under fi. fa. TO THE EDITORS OF THE LAW JOURNAL. GENTLEMEN,I would like to have your opinion upon a point which I conceive to be of some interest to the public.

A. purchases a piece of land from the government, makes several payments, and then assigns his interest to B., taking the promissory notes of B. as security for the considera

tion agreed to be given for the assignment. Before any of the notes are paid B. dies intestate. The widow of B. takes out administration to her husband's estate, and A. sues her upon the notes, and obtains judgment. The personalty is exhausted by prior claims. A writ of fi. fa. against lands is issued, and under this the sheriff sells the interest of the deceased B. in those lands, which is bought by A. All this time the fee is in the Crown, no patents being issued. A. upon this claims that by the sheriff's sale and conveyance to him he acquired the interest of the deceased, and is entitled to stand in his place, and, upon completing the payments to government, to obtain the patent.

Is he right in so claiming? In short, is the interest of a purchaser of Crown Lands before patent issues liable to sale under execution? The point is disputed. If the interest is not saleable, it occurs to me, there is a very grave defect in our laws. It would practically enable a dishonest debtor to invest a large sum in Crown Lands (leaving a small sum unpaid) and put his creditors at defiance.

Your obedient servant,
A BARRISTER.

Prescott, July 9, 1867.

[The question is not, we think, one which comes within our rule to answer. At the same time our columns are open to any one who may desire to express his opinion on the subject, a course frequently adopted in the English law periodicals.-EDs. L. J.]

A question under the Bankrupt Law. TO THE EDITORS OF THE LAW JOURNAL. GENTLEMEN,-In my letter to the Local Courts' Gazette for last month, I drew the attention of the learned Editors of that Journal, and the legal public to a question under the Bankrupt laws. I am hoping to see your comments on it, as well as other legal lights from the pens of legal contributors, in your forthcoming July number. The question is, "is a debt not included in the Schedule of debts attached to the assignment of an insolvent, under the law, discharged by his certificate of discharge or not?"

I contend that it is not, and although I cannot at this time lay my hands upon any adjudged case it seems to me that every principle of law, and common sense, is against a con

trary construction. The real object of the Bankrupt act, is to enable honest debtors to get a discharge, upon giving up all the property they have for the benefit, and upon due notice to every creditor great and small. Every creditor should have notice and by our insolvent act, as construed, every creditor has to be once notified at least. To bar a man of his debt without notice seems very unfair. Another object in having every creditor put in the list, is that no favouritism may be shown to one more than to another. If the insolvent can leave out of his list a creditor of say $50, with impunity, so he can leave out with equal legality one having a claim of $500. Supposing him to have an estate (a precious rare thing it is true) that will pay 58. in the £, then certain preferred or included creditors are paid, and excluded ones get nothing. That your readers may know in what places in our insolvent law, reference is made to the necessity of giving a full list of creditors I mention the following, viz.; Section 2 of the act says "At such meetings he (the insolvent) "shall exhibit a statement showing the position of his affairs and particularly a schedule (form B) containing the names and residences of all his creditors." See also subsection 2 of section 2: subsection 16 of section 3: subsection 2 of section 5: subsection 6 of section 2 section 11."

The English Bankrupt act has a special clause as to the effect of the certificate of dis

charge, different from ours. It says "that after the discharge the Bankrupt shall not be sued for any debt proveable under the Bankruptcy." Our act only excludes certain specified debts of a trust nature, and I think supposes that all debts have been put in the Schedule! A debt to be proveable must be one acknowledged by the debtor or at least alluded to in his list. The Bankrupt act should be construed liberally for creditors whose rights are by it infringed on. Toronto, July 15, 1867.

SCARBORO.

[Our correspondent has evidently thought over this subject carefully. Is there not some case in our own courts affecting the question? Our correspondent will perhaps look this up. —EDS. L. J.]

REVIEWS.

The Law GazeETTE. San Francisco: Hope & Chaplin.

This periodical is welcome after its long journey. It comes with news of what is transpiring at the far west, in the legal world. It touches upon a variety of subjects, and gives many extracts from the English Reports, though in a more disjointed manner we should think than would be convenient to its readers. A summary of the different cases in one of the District Courts, as published in the Gazette, shews that a "fusion" of law and equity, to say nothing of matrimonial matters, is a matter of a matter of the past in the State of San Francisco, for we see that actions of assumpsit, debt, damages and ejectment, suits for divorce, applications to quiet titles, foreclosure suits, and assessment cases are adjudicated upon in the same Court. A Judge there had need to be a man of prodigious intellect to be able to decide satisfactorily to himself or to suitors, cases involving such a variety of legal lore. Mr. Hope, one of the editors, is, we believe, a member of the Law Society of Upper Canada.

ALPHABETICAL INDEX OF THE STATUTES PASSED BY THE PARLIAMENT OF CANADA, SINCE THE CONSOLIDATED STATUTES. By T. P. Butler, B.C.L., Advocate, Montreal. Ottawa: G. E. Desbarats, 1867. Price 50c.

The above includes an appendix shewing the amendments to all the Consolidated Statutes-a useful addition to a useful pamphlet.

The above does not pretend to be more than an index, not aspiring to the dignity of a digest, but as giving in a compact form the result of the legislation in this Province from the time of the Consolidated Statutes to the end of the last session before the confederation, it will be of great service to practitioners, and in fact to all who have occasion to refer to the statutes.

Though the apparent scope of the compilation does not permit any great amplitude in the titles used, the subjects are indexed in such a way as to be found without difficulty, which, by the way, is saying a good deal, when the editor can scarcely be expected to know much about the legal phraseology of this end of the Dominion.