Domville v. Keavan. > to do so on the ground that, the case not having been tried before him, he could not certify whether it was a proper case for the Supreme Court or not. E. L. Wetmore on a former day in this term moved for an order by leave of the Judge, contending that the case having been entered at the Circuit, although referred to arbitration afterwards, the Court would not put the plaintiff in a worse position than if it had been tried. C. W. Weldon, contra, contended that the Judge could not certify, for the facts did not come before him. [RITCHIE, C. J.: Seely v. Styles, (3 Allen 246) is a case precisely in point. There the Court held that the Judge could certify, as they could not say that the case was not tried before the Judge, when the postea said it was]. In that case it appeared that the amount had been reduced by set-off. Cur. adv. vult. RITCHIE, C. J., now delivered the judgment of the Court. We think this case is governed by Seely v. Styles, (3 Allen 246) and that the learned Judge has power to certify. DOMVILLE V. KEAVAN. In replevin the Court held that the plaintiff could not recover special damages unless set forth in the declaration, but only for such loss as was the necessary result of the detention of the goods. In giving evidence of damages, it is the duty of a witness to state facts, from which the jury may draw conclusions. A statement by the plaintiff, that in consequence of the detention of his goods he sustained damages to the amount of $3000, without giving any facts to show how this amount was made up, is not evidence. This was an action of replevin for detaining a quantity of iron claimed by the plaintiff, which was shipped in England by Ducasse Claveau & Co., on board the ship Choice of which the defendant was master. The declaration contained no allegation of special damage on account of the detention of the iron. Pleas-1s. Noncepit. 2nd. Property in Ducasse Claveau & Co.; on these issue was joined. At the trial before ALLEN, J., at the St. John August Circuit in 1870, it appeared that the ship Choice, left London in April, 1868, with an assorted cargo, and arrived in St. John on May 25th. The vessel belonged to Robert Rankin & Co. A portion of the Domville v. Keavan. cargo was 278 tons of puddled bar iron, shipped by Ducasse Claveau & Co., "to order." A small portion of the iron was between decks, the bulk of it was under the rest of the cargo. A day or two after the arrival of the vessel, the plaintiff applied to Mr. Ames, clerk of R. Rankin & Co., stating that he was the owner of the iron, producing what he said was a bill of lading, and urging Mr. Ames to deliver him the iron or any portion of it as soon as possible. Mr. Ames told him that as the bills of lading were drawn to order, he must produce an indorsed bill before he could get the iron. Mr. Domville stated that he had no indorsement, but he had what he considered authority sufficient to entitle him to get the iron, and he produced a letter which Mr. Ames did not read. This letter, which was put in evidence, subject to objection of defendant's counsel was dated London, May 6th, after the Choice had sailed. It enclosed the invoice of the iron and the bill of lading; stated that Ducasse Claveau & Co. had purchased this iron and also some crockery ware for Mr. Domville, and acknowledged the receipt of a bill of exchange for £1,800. Mr. Ames told Mr. Domville that if he had not a properly indorsed bill of lading he must see Mr. Francis Ferguson, a member of the firm of R. Rankin & Co. He did see Mr. Ferguson, but he also declined to deliver the iron unless Mr. Domville produced a duly indorsed bill of lading. Mr. Domville applied to Mr. Francis Collins, who was known to be the agent in St. John of the shippers, and Mr. Collins offered to indorse the bill if Mr. Domville gave him security. Mr. Domville offered him S. J. Scovil, but this security Mr. Collins did not consider satisfactory, and he then suggested that Mr. Domville should telegraph to the shippers on the subject, as he had received no instructions. Mr. Domville did so, and they telegraphed to Mr. Ferguson, who saw Mr. Collins on the subject. After some negotiation it was agreed that if Mr. Collins indorsed the bill of lading the iron would be delivered to Mr. Domville, but on this condition, however, that he was to receive the iron as it came from the ship, and to insist no further on their weighing it to him. This he assented to when Mr. Collins indorsed the bill, but he said that although he would take the iron away he would afterwards weigh it himself and hold the ship accountable if there were any deficiency. He again applied for the iron, but he refused to indorse the bill of lading in the usual way, insisting still that he would acknowledge the receipt only of the iron he actually received. Mr. Ames told him that the bill of lading, although it stated the quantity of iron, did not bind them to deliver any specific quantity as it contained the words "weight unknown." Mr. Domville swore that he offered to place the bill in the hands of a third party and to indorse on it the quantities of iron as he received them from time to time, or to Domville v. Keavan. acknowledge by indorsation that he had received a quantity said to be so much, but that he refused to acknowledge the receipt absolutely. Mr. Ames stated that the vessel was discharged in fifteen working days, and the work was finished on June 16th. This was about the usual time. That she was not delayed an hour to cause inconvenience to Mr. Domville; but, by his directions some of the iron, which might have been discharged sooner, was allowed to remain in the vessel because Mr. Domville was making this trouble, and others who were making no trouble were pressing to get their goods. When the iron was all landed he went to Mr. Domville's office and told him, and offered then to make delivery of the iron if he would exchange bills of lading with him, as was the custom, giving witness the bill of lading indorsed by Mr. Collins, which he understood he had, with his own indorsement. Mr. Domville refused to indorse the bill in the usual way, but offered to state on the bill that he had received a quantity of iron. This Mr. Ames would not be satisfied with. He stated that he had several interviews with Mr. Domville, but he would not consent to indorse the bill as required. On June 19th Mr. Domville replevined the iron. He swore that because of the delay he lost in actual cash $3,000, besides what he lost by reason of his not being able to fulfil contracts he had made. He did not state how this amount was made up, and the evidence was objected to on the ground that no evidence of damage could be given without a special allegation in the declaration. Mr. Robert Reed, Mr. George Thomas, Capt. Cronk and Mr. Ames all proved that it is the custom to require an exchange of bills of lading before goods are delivered from a ship, and that when the bill is drawn to order, that is to the order of the shipper, it must be indorsed by the shippers or their agent. Mr. Ames knew of only one case in fifteen years in which he departed from this rule, and that he did on his own responsibility when he wished to get rid of some powder. Mr. Thomas knew of only one case, and in that his instructions had been violated and some goods delivered to Mr. Domville. Capt. Cronk knew of no such case in his experience of many years. The learned Judge directed the jury that the issues to be settled by them were only two: 1st. Did the defendant have and retain the goods at the place mentioned in the declaration? 2nd. Were these goods the property of Ducasse Claveau & Co., or of the plaintiff. There could be little doubt that on the first they must find for the plaintiff. As to the second issue-if the iron was purchased for the plaintiff, and he paid for it, and it was shipped to him by Ducasse Claveau & Co., it was his property, and that issue must be found in his favor; as, on the plea, he thought no question arose about the bill of lading. As to damages, if the iron was the Domville v. Keavan. plaintiff's property and was detained, he was entitled to reasonable damages. If they believed the defendant kept the iron for the purpose of annoying Mr. Domville, it would be a ground for exemplary damages; but, if not, and the defendant honestly believed that he was not bound to deliver it without the production of a bill of lading indorsed by the shipper, it would not be a ground for exemplary damages, even though he might be mistaken in law. The only evidence they had as to damages was Mr. Domville's statement that he lost $3,000. They were not told how this was made up. This was not satisfactory evidence, though, perhaps it was the fault of the defendant's counsel in not cross-examining that it was not made more clear. The jury found for the plaintiff; damages $2,000. S. R. Thomson, Q. C., in Michaelmas Term, moved for a new trial, on the grounds of misdirection and improper admission of evidence. He contended that the learned Judge had misdirected the jury as to the proper measure of damages; that he should have told them that the plaintiff, having alleged no special damage in the declaration, and having merely stated broadly that he had sustained damages to the amount of $3,000, without giving any particulars of how it was made up, the evidence was insufficient, and that the proper measure of damages was the difference in the market value of the iron between the time it should have been delivered, and the time it was delivered; that there being indorsed bills of lading given and required, the defendant was entitled to have such presented to him before delivering the goods, and not to regard the letter presented from Ducasse Claveau & Co. Chitty on Carriers, 246, 268 and 269, Abbot on Shipping, 279. The letter produced from Ducasse Claveau & Co., dated 9th May, was inadmissible in evidence, because it was written behind the defendant's back, after the goods were shipped and fifteen days after the ship left London. A rule nisi being granted. A. L. Palmer, Q. C., showed cause in Hilary Term. The issue in this case is narrowed down to the question whether the plaintiff owned the goods or not. It being found that he was the owner, the verdict must be for him. As to the admissibility of the letter of the 9th May, the defendant having pleaded property in Ducasse Claveau & Co., what would have been evidence against them is evidence against him, and the letter shows that they were not the owners of the iron, but the plaintiff. In regard to the question of damages, the evidence given is sufficient, and the defendant has not given a particle of evidence to show that the plaintiff has not sustained as much damages as he swore he did sustain by the unlawful Domville v. Keavan. detention of the goods; nor did they attempt to disprove his testimony by cross-examination. S. R. Thomson, Q. C., contra. The grounds on which the rule was asked for have not been answered. Here the goods were shipped at London and indorsed bills of lading given in four parts. The defendant was not authorized to deliver the goods, except upon the production of a properly indorsed bill of lading; and can it be contended that he was bound to deliver on the production of one bill of lading unindorsed, which might have been obtained fraudulently. There was no warrant whatever for the admission in evidence of the letter from Ducasse Claveau & Co., May 9th. It is said that, because we pleaded that the goods belonged to D. C. & Co., the plaintiff had a right to put in evidence their declaration in regard to the ownership of the goods; but it was res inter alios acta. Can it be contended that, after they have made a contract with us, binding us to deliver the goods only on the production of an indorsed bill of lading, they can, by the production of a letter written long afterwards, behind our backs, make us liable for damages for nondelivery? In the case of the Marie Joseph, (L. R. 1 P. C. App., 219), it is held that a bill of lading by indorsement passes the property to the indorsee, subject only to the right of an unpaid vendor; and, in the case of the Argentina, (L. R. 1 Ad. & Ecc. 370), the same doctrine is laid down. But, assuming the defendant should have delivered the goods, the plaintiff would only be entitled to nomial damages, the defendant having good reason to think that he was entitled to hold the goods. The plaintiff was only kept out of them a few days. He did not show how he had sustained any loss. He says the loss was $3,000, but gives no reasons, and is his naked ipse dixit to be taken as to the damages, when none are shown? Wilson v. Lancashire & Yorkshire Railway Company, (9 C. B., N. S. 632). Such damages could only be recovered as special damages, but no special damage is set out in the declaration, and that being the case, the only damages for which he can recover are those arising from the loss of value caused by the detention. The Judge should have given a proper direction as to the measure of damages. Knight v. Egerton, (7 Ex. 407). Cur. adv. vult. ALLEN, J., now delivered the judgment of the Court. This was an action of replevin for a quantity of iron claimed by the plaintiff, which was shipped in England on board a vessel of which the defendant was master. The defendant pleaded: 1st. Non |