MEMORANDUM. On the 6th day of December, 1885, the Honorable JOSEPH CURRAN MORRISON, one of the Justices of the Court of Appeal for Ontario, died at his residence, Woodlawn. Yonge Street, Toronto.* By 48 Vict. c. 13, s. 2 (0.) it is now provided that the permanent number of the Judges of the Court of Appeal, including the Chief Justice of Ontario, shall hereafter not exceed four, instead of five, as had been provided by 46 Vict. ch. 6, s. 2 (0.) HATELY ET AL. v. THE MERCHANTS DESPATCH Carriers Bill of lading—Condition against liability. The plaintiff agreed with the M. D. T. Co. for the conveyance of butter from London in Ontario to England. The butter was carried from London to the Suspension Bridge by the G. W. Ry. Co., from the Bridge to New York by the N. Y. C. R. R. Co., and from New York to England by the G. W. Steamship Co., bills of lading being given at London to the plaintiff by a person who signed as agent severally and not jointly for the M. D. T. Co., the G. W. Ry. Co., and the G. W. Steamship Co. The plaintiff sued for damage sustained by the butter, joining the three companies as defendants under the O. J. A. sec. 91. It appeared that the damage occurred while the butter was on a lighter of the N. Y. C. R. R. Čo. in New York harbour, and before it was actually delivered at the pier or on board a vessel of the Steamship Co. Held, that the M. D. T. Co. by virtue of its through contract was liable for the damage; that the responsibility of the Steamship Co. had not attached until after the damage was done, one of the terms of the bill of lading being that "this contract is executed and accomplished, and the liability of the G. W. Ry. and its connections as common carriers thereunder terminates on the delivery of the goods or property to the steamer or Steamship Company's pier at New York, where the responsibility of the Steamship Co. commences, and not before ;" and that inasmuch as the butter had been received in England by the consignees without objection, the Steamship Company would have been protected by conditions which by the bill of lading were made part of the contract, one of which was to the same effect as the condition in question in Moore v. Harris, 1 App. Cas. 318. Quare, by PATTERSON, J. A., if the M. D. T. Co. and the G. W. S. S. AN appeal by the defendants the Merchants' Despatch Transportation Company from the judgment of Osler, J. A., at the trial, and an appeal by the defendants the Great Western Steamship Company, from the judgment of the Queen's Bench Division. Both the judgments appealed from are reported 4 O. R. 723, where and in the present judgments the facts and arguments are fully stated. The appeal was heard on the 9th of June, 1885.* Millar, for the appellants, the Despatch Company. *Present-BURTON, Patterson, JJ.A., GALT and Rose, JJ. Moss, Q. C., and Aylesworth, for the respondents, the plaintiffs. W. Cassels, Q. C., and Holman, for the respondents, the Railway Companies. October 13, 1885. BURTON, J. A.--Upon the first trial of this action before myself, I was of opinion that the plaintiff could not recover, as the property in the goods had passed to the consignees, and it was not shewn that the plaintiff had either suffered or was liable to make good any loss that had been sustained by reason of the deterioration in the butter, and I had no power, even if such a course were proper, to add the consignees as plaintiff's without their consent. As all the evidence which the plaintiff desired to offer was in, and the defendants had chosen to press and rely upon a nonsuit, I thought the Divisional Court would have dealt with the case upon that evidence, and if I was wrong have given judgment in favor of the plaintiff, but in place of doing so, the consignees were allowed to be added as plaintiff's upon their consent being obtained, and a new trial was ordered with that change in the record. The propriety of that course is questioned by the Court of Appeal in England, in the case of Walcott v. Lyons, W. N., 25th April, 1885, p. 82, in which an order of Vice-Chancellor Bacon allowing an amendment by the addition of a plaintiff was reversed, the Court remarking that if the defence was good the plaintiff had no cause of action, and was trying to associate with himself some one who had; and if the defence was bad the presence of the other plaintiff' was unnecessary. But whether the amendment was proper or the reverse it has been allowed, and although it may be difficult to see how A. and B., who have different interests, and in unequal amounts, are entitled to a joint verdict for a certain amount, no question of that kind is now before us. The action was originally brought against the Grand Trunk Railway Company, the Merchants' Despatch Company, and the Great Western Steamship Company, and a judgment was given on the last trial against all of them by Mr. Justice Osler, but the Grand Trunk has been relieved by the judgment of the Queen's Bench Division, whilst that against the Great Western Steamship Company was affirmed. This appeal is against that judgment as far as it relates to the Steamship Company, and the Merchants' Despatch Transportation Company appeals direct from the judgment. of Mr. Justice Osler. The counsel for the Steamship Company contend that the responsibility of that company never attached, as the learned Judge has found as a fact (and it is one which can admit of very little doubt), that the injury occurred on the lighter, and he contends that until actual delivery on the Steamship Company's pier, or on the deck of the vessel, no responsibility arose, and that, if their liability did in truth commence when the butter was placed on the lighter, they are relieved under the conditions of the contract. In this connection he contends that the further finding of fact of the learned Judge was erroneous, in holding the delivery on board the barge to be a delivery to them, and that it is inconsistent with the previous finding as to the Despatch Company, because, if it was the Steamship Company's barge, there was a complete delivery before the injury occurred. I propose to deal with the latter of these objections, as it is unnecessary to consider the other question if it is made out that the company are relieved under the condition. In dealing with this part of the case I am assuming that the evidence is sufficient to establish a contract between the Steamship Company and the plaintiff. The bill of lading given to the plaintiff contains this memorandum in the body of it: "The property covered by this bill of lading is subject to all the conditions expressed in the customary forms of bills of lading in use by the said steamships, or Steamship Company at the time of shipment," and the eighth condition indorsed on this bill of lading contains this stipulation : "The consignees, or the party applying for the goods, are to see that they get their right marks, and numbers, and after the lighterman or wharfinger, or the party applying for the goods has signed for the same, the ship is to be discharged from all responsibility for mis-delivery, or nondelivery, and from all claims under the bill of lading." The case of Moore v. Harris, 1 App. Cas. 318, is relied on as shewing that this condition was intended to relieve the shipowners from damages of every kind, but there is, I think, room for the contention that the language of the two conditions differs in an essential particular. The words of the condition in that case were unlimited and universal "any claim whatever," and I quite agree that where parties to a contract use such language it is not the province of a Court to say that they could not have meant what they have said; but here they have not used such general terms, but after referring to their responsibility for mis-delivery, and non-delivery, for which, but for the condition, they would be liable under the bill of lading, they add, “and for all claims under this bill of lading." It does not strike me that negligence, which may, in a case like the present, be described as an omission to do something which it was the party's duty to do, whether that duty arose under the bill of lading or otherwise, would be comprised in these words, and I am not prepared to say that if the defendants were guilty of negligence causing the loss they would be protected by them, although it is not necessary to decide the point, for if the liability of this company is under the through bill of lading signed by Brown professing to act as agent of the Steamship Company, then we cannot disregard the memorandum to which I have above referred, stating that the property covered by it is subject to all the conditions expressed in the customary forms of bills of lading in use by them at the time of the shipment, and when we refer to these we find not only a condition similar to No. 8, but one which is almost identical with that which was the subject of decision in Moore v. Harris, viz., “ the shipowner is not to be liable for any damage to any goods which is capable of being covered by insurance, nor for any |