allegation of the want of notice of the ship's arrival, and of her being ready to receive, in the words used in the third plea.

Demurrers to these third, sixth and ninth pleas.

Sir George Honyman (Watkin Williams with him) in support of the demurrers.— By the charter-party as set out in the first count, "the charterers guarantee that the ship shall be loaded by the 15th of December, provided she is ready to receive cargo by the 6th of that month." Is it any answer for not loading by the 15th of December, to say that the charterers had no notice, the vessel was ready to receive by the 6th of that month? Surely it is no answer. The defendants know the dock to which the vessel is to go-that is specified in the charter-party-and defendants undertake to name the spout at which she is to load; it is for the defendants to look out for the ship and ascertain when she is ready, and there cannot be any obligation on the shipowner to give notice when the ship has arrived and is ready to loadHarman v. Clarke (1), and Harman v. Mant (2).

[MONTAGUE SMITH, J.-There is nothing to shew that the defendants were prevented by the want of notice from naming the spout, and there loading the vessel.]

No. The charterer is to watch the arrival of the vessel. The owners of the vessel may not know who are the defendants' agents at the port. In 1 Selwyn's N.P. (13th edit.) p. 133, on the subject of averment of notice, reference is made to Holmes v. Twist (in error) (3), "where an averment was held necessary on the ground that the matter rested in the privity and knowledge of the plaintiff alone. But where the connusance of the Act to be done lies as well in the knowledge of the defendant as of the plaintiff, an averment of notice is not necessary; as where the act is to be done by a stranger, namely, a stranger named and

(1) 4 Campb. 159. (2) 4 Campb. 161. (3) Hob. 51.

agreed upon between the parties agreeably to the distinction above mentioned." For this is cited-Powle v. Hagger (4), and Juxon v. Thornhill (5).

At all events the defendants must state that they did not know that the vessel had arrived, but on these pleadings it is quite consistent with what is alleged, that the defendants perfectly well knew that the vessel had so arrived, although they had not had notice of the arrival -Reynolds v. Fenton (6), and Sheehy v. The Professional Life Assurance Company (7).

Baylis, contra.-The pleas are good. In addition to the vessel going to the dock named, the vessel is to be ready to receive her cargo. This is a matter which is to be done by the plaintiff, and it must be entirely within his knowledge, and not that of the defendants, when the vessel is ready to receive, and therefore notice of that fact ought to be given by the plaintiff Vyse v. Wakefield (8). In Fairbridge v. Pace (9), the ship was by the charter-party to go to a certain port, and there load a full homeward cargo, but as the freighters had no interest in the outward cargo, and could not know when that had been discharged, Rolfe, B. ruled they were entitled to notice from the captain when that had been done, and the vessel was ready to receive the homeward cargo. It was held also, in the

late case of Makin v. Watkinson (10), that notice of want of repair is necessary before a lessee can be sued on the covenant to repair.

There was in this case no absolute contract by the defendants to load by the 15th of December, but only a conditional one, that is to say, provided the vessel was ready to receive by the 6th. Then as to the averment of want of notice in the 3rd plea, it says that the defendants

(4) Cro. Jac. 492.

(5) Cro. Car. 132.

(6) 3 Com. B. Rep. 187; s. c. 16 Law J. Rep. (N.S.) C. P. 15.

(7) 13 Com. B. Rep. 787; s. c. 22 Law J. Rep. (N.S.) C.P. 244.

(8) 6 Mee. & W. 442; s. c. 9 Law J. Rep. (N.S.) Exch. 274.

(9) Car. & K. 317.

(10) 40 Law J. Rep. (N.S.) Exch. 33; s. c. Law Rep. 6 Exch. 25.

had not any notice, and on the issue taken thereon, the plaintiff could give evidence. of any kind of notice that would include knowledge, and notice and knowledge are here, therefore, the same thing. The plea alleges that the defendants could not load because they had not had any notice of the ship's arrival and being ready to receive. The demurrers to the 6th and 9th pleas raise the same question as the demurrer to the 3rd plea, for the pleas all refer to the charter-party, and therefore if notice was necessary on the plea to the 1st count, it would be equally so on the pleas to the other counts.

Sir George Honyman replied. BOVILL, C.J.-We think it important that the issues in fact should be tried before we determine these demurrers.

Cur. adv. vult.

BOVILL, C.J. now (July 5), delivered the judgment of the Court (11).

The demurrers in this case were argued before the Court in Easter Term, 1871, and judgment was reserved until after the issues in fact had been tried. That has now been done, and a verdict found for the defendants. It was an action by the shipowner against the charterers, for not loading a cargo of coal pursuant to charterparty, and by the terms of the charter party, as stated in the declaration and the pleas, the vessel was to proceed to the South Dock, Sunderland, and there load in the usual and customary manner at any one of the collieries the freighters (the defendants) might name, and each of the pleas demurred to alleged that the defendants had not any notice of the ship having proceeded to and arrived at the South Dock, and of her being ready to receive cargo, wherefore the defendants did not nor could load her. When the case was argued upon the demurrers, we had no information upon the pleadings as to the course of loading at the South Dock, and a question arose whether the last allegation in the pleas was to be treated as a mere conclusion of law or as an allegation of matter of fact. Assuming the pleas

(11) Bovill, C.J., Byles, J., and Brett, J. (Montague Smith, J., had left the Bench of this Court, and become a Judge of the Privy Council, before the delivery of the judgment.)

to be bad without such an allegation of fact, then, in order to support them, it would be necessary to treat the last averment as an allegation of fact, meaning that without notice from the plaintiff, the defendants would not have fair means of knowing that the ship had arrived and was ready. And as we should construe the averment in a sense that would support the pleas rather than defeat them, we think they must be considered to contain an allegation in substance that by reason of want of notice of the ship's arrival, and being ready to load, the defendants were prevented loading the vessel. In that view of the case we think the pleas are good, and our judgment upon the demurrers must be for the defendants. Judgment for defendants.

Action; when Maintainable-Tenants in Common-Trespass-Trover—Amendment of Action.

One tenant in common cannot maintain trespass or trover against his co-tenant for cutting and carrying away the grass off their land unless there has been ouster, or unless it is shewn that the grass has been destroyed.

The plaintiff and defendant being tenants in common of certain land, the defendant entered the land, cut the grass, put a lock upon the gate, and carried away the grass. There was no evidence that the defendant kept the gate locked, but there was evidence that he opened the gate for the plaintiff's son to take away the hay of a former year: -Held, that these facts did not amount to an ouster of the plaintiff by the defendant, so as to enable the plaintiff to maintain an action of trespass against the defendant, nor to a destruction of the common pro

perty so as to entitle him to maintain an action of trover.

Held, also, that the Court below was right in refusing to allow an amendment of the declaration by converting the action into an action for an account under 4 Anne c. 16. s. 27.

This was a proceeding in error from a judgment of the Court of Exchequer Chamber, upon a case stated under the Common Law Procedure Act, 1854, and affirming a previous judgment of the Court of Common Pleas.

The action was an action of trespass for breaking and entering the plaintiff's land, with a count in trover.

The plaintiff was a farmer residing at Southall, and for many years previous to the action had occupied three closes of grass land at Drayton Green, Ealing, as a yearly tenant under Miss Lawrence, to whose agents, Messrs. Sewell, he had from time to time paid the rent. The lands in question belonged in fact to Miss Lawrence and a Miss Senior as tenants in

common.

The plaintiff had no notice of any other persons being interested in the lands until March 22nd, 1867, when he received a letter from Messrs. Garrard and James, the solicitors for Miss Lawrence, stating that they were instructed by Miss Lawrence and Miss Senior, "of whom he held, to put an end to his tenancy of their land and premises at Drayton Green," and begging him to accept their letter as notice to quit at Michaelmas then next.

On September 26th, 1867, the plaintiff received from Messrs. Snell, acting as agents on behalf of Miss Lawrence, but without the knowledge or consent of Miss Senior, a letter stating that Miss Lawrence was willing to let him the fields at Drayton Green, on a yearly tenancy, at the rent of 361. a year, that she had not the power to let the fields on any other than a yearly tenancy, but that there was not much chance of his being disturbed for the next three years, and asking if they should send him an agreement?

Before sending a reply to this letter, the plaintiff received a letter, dated the 12th of October, 1867, from Mr. Senior, the father of Miss Senior, acting on her

behalf, referring to the previous notice to quit, and desiring the plaintiff to give up possession immediately.

On the 15th of October, 1867, the plaintiff wrote to Messrs. Snell, accepting their offer, and requesting them to have an agreement prepared, and promising to pay the rent then due.

On the same day he wrote to Mr. Senior, stating that he had accepted the offer made to him by Miss Lawrence of the fields at Drayton Green, and had written to Messrs. Snell to get the agreement prepared, and promising them to pay the rent then due, and he afterwards received a letter from Mr. Senior, dated the 16th of October, 1867, stating that Miss Lawrence had no authority to continue him as tenant without Mr. Senior's consent, as he had an equal interest in the land with her, and again desiring him to give up possession immediately. No consent to the plaintiff's continuance of tenancy was given by or on behalf of Miss Senior.

On the 11th of November, 1867, the plaintiff paid Messrs. Snell the sum of 121. for half a year's rent, due Michaelmas, 1867, and received a written receipt for the same. He continued in possession of the land until the 23rd of June, 1868, when the defendant, acting under the authority of the said Mr. Senior, who had let the lands to him from the 29th of March, 1868, to the 29th of September, 1868, entered upon the fields in question, and took possession thereof, and put a lock on the gate, and cut and carried away the crop of grass, the value of which with the aftermath was, as found by the jury, as hereinafter mentioned, 671.

The defendant opened the gate for the plaintiff's son to take away the hay of a former year. There was no evidence

whether the gate was kept locked or not.

On the 29th of July, 1868, the present action was commenced against the defendant.

At the trial the learned judge gave leave to the defendant to move to enter a nonsuit on the ground that the plaintiff and the defendant were tenants in common of the locus in quo, and that one tenant in common could not maintain trespass against his co-tenant for the removal of growing crops.

The jury found a verdict for the plaintiff for 671., stating that they found that the value of the hay was 551., and that of the aftermath 127.

The verdict was accordingly entered for the plaintiff for 671. The learned judge gave further leave to the defendant to move to reduce the damages on the ground that even if entitled to recover at all, the plaintiff was not entitled to recover the whole value of the hay and aftermath. The proceedings were amended by substituting the name of Miss Senior for James Trevor Senior, and power was reserved to the Court to further amend them. A rule nisi was obtained by the defendant to enter the verdict in his favour, and was afterwards made absolute.

The case is reported in 38 Law J. Rep. (N.S.) C.P. 252. This judgment was afterwards affirmed in the Exchequer Chamber.

Gibbons (Curtis Bennett with him), for the appellant.-First, Miss Senior having stood by and allowed the plaintiff to remain in possession is stopped from deny. ing his title as tenant to her. Consequently the notice to quit given by the letter of the 22nd of March, 1867, was invalid as regards Miss Senior, as it is not shewn that Messrs. Garrard and James had authority from her-Right d. Fisher v. Cuthell (1), Doe d. Mann v. Warlters (2), Doe d. Lyster v. Goldwin (3). The plaintiff therefore remained tenant to Miss Senior, and the case is not one of tenancy in common. Secondly, assume the plaintiff to have been tenant to Miss Lawrence alone. The grass when severed became a chattel for which trover can be brought, and the carrying away of the grass amounted to a destruction of the common property of the plaintiff and defendant. Grass being an article from its very nature intended for consumption by cattle could not be followed when carried away; and it is clear that one co-tenant can maintain trover against the other where there is destruction of

(1) 5 East, 491.

(2) 10 B. & C. 626; s. c. 5 M. & R. 357; s. c.

2 Q.B. Rep. 143.

(3) 10 Law J. Rep. (N.S.) Q.B. 275.

the common property-Barnardiston v. Chapman (4), Mayhew v. Herrick (5). Trespass will also lie in this case because there was ouster of the plaintiff by the defendant. The ouster is to be inferred from the lock upon the gate, and from the fact that the defendant took away the aftermath, which involves exclusive possession of the land by him-Murray v. Hall (6), Stedman v. Smith (7). In any case it is clear that the plaintiff could maintain an action of account-Pascoe v. Swan (8), Goodtitle v. Tombs (9), Creswell v. Hedges (10). The plaintiff ought to have been allowed to amend his declaration under stat. 4 Anne c. 16, especially as the defendant was allowed to amend. At the least the plaintiff ought to have a verdict for half the crops.

Bulwer (Lumley Smith with him), for the respondents.-[Their Lordships intimated that they were satisfied the case was one of tenancy in common, and that the argument as to estoppel could not prevail.] At the trial the case of Bennington v. Bennington (11) was cited from Roscoe's Nisi Prius, 11th ed. p. 567, where it is wrongly reported. Had the case been correctly cited, the judge would have directed a nonsuit. There was not here any destruction of the common property. The grass was cut for the purpose of being made into hay, and the action was brought before the hay could have been stacked. It is clear, therefore, that trover will not lie-Co. Litt. 1996, Sir E. V. Williams's Notes to Saunders's Reports, p. 111. This case is similar to Fennings v. Lord Grenville (12), where one tenant in common of a whale cut up the whale, and turned it into oil, and it was held that

(4) 4 East, 121.

(5) 7 Com. B. Rep. N.S. 229; s. c. 18 Law J. Rep. (N.s.) C.P. 179.

(6) 18 Law J. Rep. (N.s.) C.P. 161.

(7) 8 E. & B. 1; s. c. 26 Law J. Rep. (N.S.) Q.B. 314.

(8) 27 Beav. 508; s. c. 29 Law J. Rep. (N.s.) Chanc. 159.

(9) 3 Wils. 118.

(10) 1 Hurl. & C. 421; s. c. 31 Law J. Rep. (N.S.) Exch. 497.

(11) Cro. Eliz. 157. The error in the 11th edition of Roscoe's Nisi Prius is corrected in the 12th edition, p. 828.

(12) 1 Taunt. 241,

trover would not lie. See also Jones v. Brown (13). Then as to the question of trespass it is clear there was no ouster. Placing the lock upon the gate was a reasonable precaution, and there is no evidence that the gate was locked. The taking of the aftermath did not involve exclusion of the defendant. The mere perception of profits is no ousterReading's Case (14). With reference to the proposed amendment, it is clear that no such amendment could be allowed, an action of account being a totally distinct class of action from the present, and requiring a totally distinct machinery.

Gibbons in reply.

THE LORD CHANCELLOR. My Lords, the appellant in the present case complains of a decision of the Court of Exchequer Chamber.

The whole case turns simply upon this, what are the rights of a tenant in common against his co-tenant in common in respect of acts by which that co-tenant takes possession either of the lands or of chattels connected with the land?

In the case in question the subjectmatter in dispute consists of three fields situated in the neighbourhood of London, used for the purpose of growing crops of grass to be made into hay. A question was raised on the part of the plaintiff in error upon the special facts which have been found in the case as to whether or not the parties did in fact hold as tenants in common. Under all the circumstances of the case we think that that question is not open to the plaintiff in error in the present controversy. The whole case seems to have proceeded in the Court below upon the footing that the plaintiff and defendant were tenants in common. The verdict of the jury did so, and the point reserved for argument was expressly whether or not, the parties being tenants in common, an action of this kind would lie.

The action was in trespass with a count in trover. The alleged trespass on the part of the defendant is, that he being one tenant in common, entered upon the

(13) 25 Law J. Rep. (N.s.) Exch. 345. (14) 1 Salk. 392.

land in question, and there made the existing crop of grass as it stood into hay, and carried it off. And farther it is also said, that he in like manner dealt with the aftermath. The question upon that is, whether the finding going simply to the taking the grass and the carrying it away, there is a foundation for an action either of trespass or of trover.

Now, as regards the question of trespass, it appears to be perfectly settled, and there is really no controversy between the counsel in the case upon that part of the matter, that unless there be an actual ouster of one tenant in common by another, trespass will not lie by the one against the other so far as the land is concerned. Therefore what we have to look at in the findings before us is, whether or not there is anything stated which leads to the conclusion that the plaintiff was ousted by his co-tenant.

It appears to me that there is not a single particle of evidence or circumstance of fact found in the case which would justify us in arriving at such a conclusion. All that is alleged that is approximate to it is this, that one tenant in common carried away this crop, and that he put upon the gate which was there a lock. It is found expressly that there is no evidence as to whether that gate was always kept locked or not. The only circumstance that is supposed to lead to the inference that there was such an ouster is, that there is a finding that the defendant allowed the plaintiff's son to enter, or (as the expression is) "opened the gate to the plaintiff's son," to enable him to go upon the land to carry off some former crops which were upon the land. But even if there had been a finding that the gate was locked, that would not have been sufficient unless it had been shewn that the plaintiff was excluded by that locking, or that on some occasion when he applied to have it opened, it was not opened. The locking was essential if the grass was to be converted into hay, in order to prevent its being stolen and carried away by other persons during the night, these fields being in the neighbourhood of London. Nothing whatever is said about what the object and intent of so putting on the lock was, and nothing