560 L. & N. W. RAILWAY CO., APP., GRACE, RESP. T. T. 1857.

night in question, upon the state of the weather, and upon the fact that the luggage-train had no business upon the line at all until the mail-train had passed.

"There was no direct evidence of misconduct or neglect of duty: but I was called upon, on behalf of the defendants, to infer from the foregoing facts that the plaintiff could not have kept such a look out as he was bound to do, and had been properly dismissed.

"Acting in the place of a jury, I was of opinion that there was not sufficient proof of negligence to warrant a dismissal, in the ordinary relation of master and servant: but, by binding the plaintiff to submit to any fine not exceeding 208., or dismissal, for a fault, under the authority or with the sanction of the directors, by the superintendent,' the defendants, no doubt, intended to reserve to themselves a more extensive power than the law alone would give them; and, if they are at liberty to say to their servants, The *meaning of our agree*561] ment is, that every complaint will be investigated, and, if the superintendent reports you guilty of a fault, and his finding shall be sanctioned and confirmed by the directors, you will be liable to be fined or dismissed, as the case may be, and without appeal,'-then I had no jurisdiction, and the verdict cannot be sustained: but, if, to constitute a fault' within the meaning of the agreement, misconduct or negligence is necessary, and such proof as would satisfy a jury that the plaintiff was guilty either of misconduct or of negligence, then the verdict ought to stand.'

6

Bovill, Q. C., for the appellants.-On the former occasion, the county court judge submitted to the court a question of law. [COCKBURN, C. J.-We sent the case back to him because we thought he was mistaken in supposing it to involve any question of law.] He now presents it as a mere question of fact,-stating a conclusion at which he does not seem to have arrived at the trial. [CRESSWELL, J.-He finds, as a matter of fact, that there was no evidence to satisfy him that the plaintiff had been guilty of misconduct or of negligence.] He has not found a single fact to justify the plaintiff in failing to see the lights in time. The proper course, it is submitted, under the circumstances, would be to send the case down to a new trial.

Knowles, Q. C., contrà, was stopped by the court.

COCKBURN, C. J.-Upon the facts as now found by the county court judge, the case presents no difficulty. Our decision must be for the respondent: but, under the circumstances, I do not think it would be. right to dismiss the appeal with costs. The fault was in the judge so inartificially stating the case in the first instance. The probability is, that, if it had originally *been stated as it now is, the case would not have been resisted.

*562]

Knowles.—It was not the respondent's fault that the judge mistook his duty in stating the case.

CRESSWELL, J.-The county court judge has now deprived the defendants of the right of appeal, by placing his decision upon the fact. I agree with the Lord Chief Justice in thinking that there should be no

costs.

The rest of the court concurring,

Appeal dismissed without costs. (a)

(a) As to costs, see Gibbon, App., Gibbon, Resp., 13 C. B. 205, 219 (E. C. L. R. vol. 76); Liedemann, App., Schultz, Resp., 14 C. B. 38, 52 (E. C. L. R. vol. 78); Foster, App., Smith, Resp., 18 C. B. 161 (E. C. L. R. vol. 86). And see Fothergill, App., Walton, Resp., 14 C. B. 295 (E. C. L. R. vol. 78).

*BARRICK and Others v. BUBA and Another. June 5.

[*563

A declaration of war by this country against a foreign power, imports a prohibition of commercial intercourse with the subjects of that power.

Held, therefore, that a plea to an action upon a charter-party made between a subject of this country and a Russian subject for loading a cargo at Odessa, a Russian port,-that, at the time of making the contract, the plaintiff was a subject of Great Britain and the vessel a British vessel, and the defendant a subject of Russia residing and carrying on trade there, and that, before the expiration of the time for the defendant to load the vessel according to the charterparty, and before any breach thereof, a state of war existed, and had ever since continued, between the two countries,-was a good answer.

Held also, that a mere intimation by the agent of the charterer at Odessa to the master, before the time for loading had expired, that "he had ceded the charter-party, with all its rights and obligations," to a third person, and that he must address himself to such third person for a cargo, did not amount to a renunciation of the charter-party, so as to entitle the owner to sue as for a breach at that time.

THIS was an action for breach of a cnarter-party.

The declaration stated, that, by a charter-party dated the 1st of November, 1853, it was mutually agreed between the plaintiffs, owners of the ship Lavinia, and the defendants, merchants, that the said ship, being tight, staunch, and strong, and in every way fitted for the voyage, should with all convenient speed after discharge of her outward cargo at Odessa, or so near thereto as she might safely get, there load from the factors of the defendants a full and complete cargo of tallow, wheat, seed, or other stowage goods, or grain, at the option of the defendants, and, being so loaded, should therewith proceed to a safe port in the united kingdom, or so near thereto as she might safely get, and deliver the same afloat, on being paid freight; the cargo to have been brought to and taken from alongside at charterers' expense and risk; the ship's boats and crew to have rendered all customary assistance in towing the lighters, &c.: forty running days to have been allowed the said merchants (if the ship was not sooner despatched) for loading and unloading; and, if half or more of the cargo consisted of wool, ten additional lay days were to have been allowed; and ten days on demurrage over and above the said laying *days, at 5l. per [*564 day; the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation,

of what nature and kind soever during the said voyage, always excepted: and it was thereby further agreed, that, in the event of hostilities breaking out which would prevent the said vessel from loading at Calcutta, the said charter-party was to be null and void: Averment, that, within a reasonable time after the making of the said charter-party, the said ship arrived at Odessa, and there discharged her outward cargo, and was then, to wit, on the 15th of March, 1854, there ready to load from the factors of the defendants a full and complete cargo according to the terms of the said charter-party, of which the defendants had due notice: Breach, that, although the plaintiffs fulfilled and performed all conditions precedent necessary to entitle them, and they became and were entitled, and demanded of the defendants, to have the said ship or vessel loaded as aforesaid, and were always up to and at the time of the refusal of the defendants thereinafter mentioned, ready and willing to receive a cargo on board of the said vessel, and to keep and detain their said vessel at Odessa aforesaid, for the purpose of being loaded, for the said lay days, and, if half or more of the cargo had consisted of wool, for the said ten additional lay days in the charterparty mentioned, and, if thereunto requested, for the said demurrage days, or any of them, and to do and perform all things on their part according to the said charter-party, of which the defendants had notice, —yet the defendants did not nor would, at any time during the lay days mentioned in the said charter-party (which had expired before the commencement of this suit), or since, load the said vessel according to the said charter-party, but, on the contrary thereof, wholly refused so to do, and before the *expiration of the lay days discharged *565] the plaintiffs from further keeping or detaining the said vessel for the purpose of being so loaded; by reason whereof the plaintiffs not only lost and were deprived of the freight that they would otherwise have earned according to the said charter-party, but were put to great expense and cost in and about attempting to procure another cargo for the said ship or vessel, and were otherwise greatly damaged, &c.

The defendants pleaded,-first, that it was not agreed as alleged in the declaration.

Secondly, that the said ship was not and did not continue ready to load, and that the plaintiffs were not and did not continue ready and willing to receive and load in and on board of such ship a full and complete cargo, and to keep and detain the said vessel at Odessa, according to the true intent and meaning of the said charter-party.

Thirdly, that the defendants had no notice that the said ship was and continued ready, and that the plaintiffs were and continued ready and willing to load or receive a cargo according to the said charter-party in and on board of the said ship, as alleged, and to keep and detain the said vessel at Odessa for that purpose.

Fourthly, that, after the making of the said agreement, and before the time had elapsed for the defendants to load the said vessel, according to the said charter-party, and before any breach thereof by the defendants, hostilities broke out, within the true intent and meaning of the said agreement, which would have prevented the loading of the said vessel at Odessa according to the charter-party, and which did, according to the true intent and meaning of the charter-party, prevent the defendants loading the said vessel at Odessa aforesaid; and that such hostilities had ever since continued; whereby the said charter-party became void.

*Fifthly, that one of the provisions contained in the said [*566 charter-party was, that the act of God, the Queen's enemies, restraint of princes and rulers, (a) fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of what nature and kind soever, during the said voyage, were and should be always mutually(a) excepted; and that, before any breach by the defendants of the said charter-party, and thence hitherto, the defendants were hindered and prevented loading the said ship according to the charter-party, by the Queen's enemies and the restraint of princes and rulers,(a) within the true intent and meaning of the charter-party in that behalf.

Sixthly, that Odessa, in the said agreement mentioned, at the time of the making of the said agreement was, and ever since had been, and still was, part of the dominions of the Emperor of all the Russias, and that, at the time of making the said agreement, the plaintiffs were and still are subjects of Her Majesty Queen Victoria, and that the said ship Lavinia was, and thence hitherto had been and was, a British vessel belonging to the plaintiffs, being such British subjects as aforesaid; and that the defendants were not British subjects, and were during all the time aforesaid residents in Russia, and carrying on trade and commerce there, subjects of the said Emperor, and enemies of Her said Majesty Queen Victoria; and that, before the time had elapsed for the defendants to load the said vessel according to the said charter-party, and before any breach thereof by the defendants, a state of war existed and had ever since continued between Her Majesty Queen Victoria and the said Emperor of all the Russias.

Seventhly, that the defendant did not refuse to load the said vessel, and discharge the plaintiffs from further *keeping and detaining the said vessel for the purpose of being so loaded.

[*567

Eighthly, that, before the time allowed for loading the said vessel had expired, and before any breach of the charter-party by the defendants, and before any discharge by the defendants of the plaintiffs from further keeping or detaining the said vessel for the purpose of being loaded, the said vessel departed and left the place where she was to have been loaded by the defendants according to the charter-party, and

(a) These words were not in the charter-party.

never returned thereto; and that the plaintiffs thereby prevented the defendants from loading the said vessel there according to the true intent and meaning of the charter-party.

The plaintiffs joined issue on the first, second, third, and seventh pleas of the defendants, and took issue on the fourth, fifth, sixth, and last pleas.

They also demurred to the sixth plea,-the ground of demurrer stated in the margin being, "that the state of war did not put an end to the contract between the plaintiffs and defendants, nor did it, in consequence of the existence of a state of war, become illegal by the law of England for the defendants to load or for the plaintiffs to receive a cargo.' Joinder.

The issues of fact came on to be tried before Jervis, C. J., at the sittings in London after Trinity Term, 1855, when a verdict was taken for the plaintiffs, subject to the opinion of the court upon the following

The Lavinia was chartered by the plaintiffs to the defendants on the 1st of November, 1853, under the following charter :—

"New ship. 10 years.

"Memorandum for charter.

"London, 1st November, 1853.

*568] "It is this day mutually agreed between Henry *Barrick, Esq., for himself and co-owners of the good ship or vessel called the Lavinia, of London, A. 1, coppered, of the burthen of tons register admeasurement, or thereabouts, whereof A. E. is master, now at Whitby, and Messrs. Buba, Brothers, London, merchants,-That the said ship, being tight, staunch, and strong, and every way fitted for the voyage, with all convenient speed, after discharge of outward cargo at Odessa, or so near thereunto as she may safely get, shall there load from the factors of the said freighters a full and complete cargo of tallow, wheat, seed, or other stowage, or grain, at the option of the freighters, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; and, being so loaded, shall forthwith proceed to a safe port in the united kingdom (both inclusive), or so near thereto as she may safely get, calling at Cork or Falmouth, at the master's option, for orders (which are to be given by return of post, in reply to the captain's letter to the charterers, or lay days to commence), and deliver the same afloat, on being paid freight as follows: