Richard Bourne and Others, - Plaintiffs in Error; Samuel Gatliff, - Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 10 June 1844 |
| Date | 10 June 1844 |
| Court | House of Lords |
English Reports Citation: 8 E.R. 1019
House of Lords
Mews' Dig. iii. 156; vi. 722; xiii. 534. S.C. 8 Scott N.R. 604; 7 Man. and Gr. 850; and, in C.P., 4 Bing. N.R. 314. Commented on, on point as to duty of carrier in Cargo Ex Argos, 1873, L.R. 5 P.C. 160; Mitchell v. Lancashire and Yorkshire Ry. Co., 1875, L.R. 10 Q.B. 260; Chapman v. Great Western Ry. Co., 5 Q.B.D. 280; and see Petrocochino v. Bott, 1874, L.R. 9 C.P. 358.
Carrier - Evidence - Pleading - Costs - Practice.
[45] RICHARD BOURNE and Others-Plaintiffs in Error; SAMUEL GATLIFF,-Defendant in Error [June 7, 10, 1844]. [Mews' Dig. iii. 156; vi. 722; xiii. 534. S.C. 8 Scott N.R. 604; 7 Man. and Gr. 850 ; and, in C.P., 4 Bing. N.R. 314. Commented on, on point as to duty of carrier in Cargo Ex Argos, 1873, L.R. 5 P.C. 160; Mitchell v. Lancashire and Yorkshire By. Co., 1875, L.R. 10 Q.B. 260; Chapman v. Great Western By. Co., 5 Q.B.D. 280; and see Petrocochino v. Bott, 1874, L.R. 9 C.P. 358.] Carrier-Evidence-Pleading-Costs-Practice. A carrier by sea, under a bill of lading of goods " to be delivered in the like good order, etc., at the port of, etc., unto Mr. , or assigns, on paying for the said goods freight and charges as per margin, with, primage and average accustomed," is not entitled immediately on the arrival of the vessel, and without notice to the owner, to land the goods; and if he should land them, and they should be destroyed, he will be answerable to the owner for the loss. Evidence of former transactions between the same parties can be received for the purpose of explaining the meaning of the terms used in their written contract. A declaration consisted of two counts. The defendants pleaded six pleas; 4 to the first, and two to the 2d count. The plaintiff demurred specially to the third and fourth pleas, and generally to the sixth plea, and took issue on the others. The Court of Common Pleas gave judgment for the plaintiff on all the demurrers. The cause went to trial on the issues, and a verdict was found for the plaintiff on the issues raised on the first count: as to the issue on the 2d count, the jurors were discharged by consent. Judgment was afterwards entered for the plaintiff. On a writ of error, the Exchequer Chamber affirmed the judgment of the Common Pleas, except as to the demurrer to the sixth plea, which plea the Exchequer Chamber declared to be a sufficient answer in law to the 2d count. A general order was made for the defendants to pay costs to the plaintiff, but no order was made to except, out of these general costs, the costs of the sixth plea and the demurrer. The Exchequer Chamber awarded to the plaintiff costs under the statute, for delay in the execution of his judgment, by reason of the writ of error : - helh, that the Court of Exchequer Chamber ought not to have awarded the costs under the statute, and ought to have excepted the costs of the sixth plea out of the general costs awarded to the plaintiff. In a declaration against carriers, one of the counts averred the contract to be to carry goods from D. to L., and to take care of them on landing them at a wharf there, and to deliver them to the plaintiff; the defendants pleaded that they did take care of the goods at the wharf till they were destroyed by fire, without defendants' default: - held, a good plea to the count. 1-019 XI CLARK & FINNELLY, 46 BOURNE V. GATLIFP [1844] This House pronounced the same judgment which the Court of Exchequer Chamber ought to have pronounced. This was an action of assumpsit, brought in the Court of Common Pleas by Samuel Gatliff against [46] Kichard Bourne and Others, upon a contract for the delivery of goods. The declaration contained two counts : In the first count the plaintiff alleged in substance that he delivered to the defendants certain linen goods to be carried by them in their steam-vessel, the City of Londonderry, from Belfast to Dublin, and there reshipped into their other steam-vessel called the William, Fawcett, and by it to be conveyed to London, and there delivered in good order and condition (all and every the accidents of the seas, steam navigation of whatever nature and kind excepted) unto the plaintiff or assigns, on paying for the same certain freight and charges, with primage and average accustomed; that the defendants in consideration of the premises promised to take care of, and safely and securely carry and convey, and deliver the said goods and merchandize as aforesaid ; that the William, Fawcett with the goods on board arrived at London ; and that although a reasonable time for the delivery of the goods elapsed, and the defendants delivered part of them, yet they did not deliver the residue or any part thereof, and so negligently conducted themselves with respect to it that it was lost. The second count in substance stated a delivery by the plaintiff to the defendants, of linen goods to be carried by the City of Londonderry to Dublin, and thence by the William Fawcett to London, and proceeded to aver, that in consideration of the premises and that the plaintiff, at the defendants' request, had employed them to take care cf the goods at the wharf where they should be landed from the William Fawcett. and to convey them from the wharf to the plaintiff's place of business in Ironmonger-lane, and deliver them there in a reasonable time after their landing, the defendants promised so to take care of [47] them at the wharf, and convey them thence to Ironmouger-lane, and there deliver them; that the goods were landed at Fenning's Whaif, but that the defendants did not take care of them there, or convey or deliver them according to their promise, and so negligently behaved that the goods were lost. The defendants pleaded in substance as follows:-1. Non assumpserunt. 2. To the first count; that they delivered the goods according to promise. 3. To the first count; that the goods were shipped on board the William Fawcett under the terms and conditions expressed in a bill of lading (the terms of which were set out); that, on their arrival in London, they were unshipped and deposited upon Fenning's Wharf, there to remain till they could be delivered to the plaintiff or his assigns, according to the bill of lading, Fenning's Wharf .being a place where goods brought in steam-vessels from Dublin to London were usually deposited for the use of the consignee, and a fit place for that purpose; and that while the goods remained upon the wharf, and before a reasonable time for their delivery to the consignee had elapsed, they were burnt by an accidental fire which broke out on the wharf, without any default of the defendants. 4. To the first count; that on the arrival of the goods at London, on board the William Fawcett, the defendants were ready and willing to deliver them to the plaintiff according to promise, but neither the plaintiff nor his assigns were there ready to receive them, whereupon the defendants landed them on Fenning's Wharf, to remain there till the plaintiff or his assigns should come and receive them, or till they could be conveyed or delivered to the plaintiff or his assigns, Fenning's Wharf being a place where goods conveyed by steam-vessels from Dublin to London [48] were usually landed and deposited, and being a fit place for that purpose; and that while the goods were deposited there, and before the plaintiff or his assigns came or sent for them, or a reasonable time for carrying them to him had elapsed, they were burnt by an accidental fire which broke out on the wharf, without any default of the defendants. 5. To the second count; that the defendants did not take the goods into their possession for the purpose stated in that count. 6. To the second count; that the goods were shipped under the terms of a bill of lading (which was set out; * that on their arrival they were * The freight bill contained the following stipulation: " Goods not taken away within three days after landing (or sent home and refused) are stored at the expense and risk of the consignee." 1020 BOURNE V. GATLIFF [1844] XI CLARK & FINNELLY, 49 safely landed and stored at Fenning's Wharf, being a wharf where goods conveyed in steam-vessels from Dublin to London were usually deposited, and a proper place for that purpose, and remained there until, etc., and afterwards and before a reasonable time for conveying them to the plaintiff had elapsed, they were consumed by a fire which accidentally broke out on the wharf, without any default on the part of the defendants. The plaintiff in his replication took issue upon the first, second, and fifth of the above pleas. To the third and fourth he demurred specially, and to the sixth he demurred generally. ' The Court of Common Pleas, in Hilary term 1838, gave judgment for the plaintiff upon all the demurrers (see 4 Bing. N.C. 314; 1 Arnold, 120; 5 Scott, 667). The issues of fact were tried on the [49] 18th November 1839, before Lord Chief Justice Tindal, when it appeared that the ship arrived at London at two in the afternoon of Sunday the 28th August, and was reported at the Custom-house at 10 o'clock on the next morning; the goods were landed at a wharf called Fenning's Wharf, without notice to the plaintiff, between the hours of eleven and four on the 29th of August, and on that night were destroyed by an accidental fire. Evidence oral and documentary was given, on the part of the plaintiff, that the goods mentioned in the declaration were shipped at Belfast, under two bills of lading; that the defendants had on previous occasions conveyed goods by sea for the plaintiff, and had usually delivered to him a printed bill of freight and charges, which was in the ordinary form. Another printed bill of freight and charges was produced, which was stated by a witness to relate to some former dealing between the plaintiff and defendants, and contained a blank, of which he offered a parol explanation...
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Bourne and Others v Gatliffe, in Error
...English Reports Citation: 135 E.R. 345 IN THE COURT OF COMMON PLEAS. Bourne and Others and Gatliffe, In Error S. C. 11 Cl. & F. 45; 8 E. R. 1019 (with note, to which add Bruner v. Moore, (1904) 1 Ch. 311). '7 BUN. & G. 850. BOURNE V. GATLIITfi 345 [850] BOUENE AND OTHERS V. GATLIFFE, IN ERR......