The provisions of 11 Geo. 4. & 1 Will. 4. c. 70. 8. 21, enabling defendants held to bail on mesne process to be rendered in discharge of their bail to the prison of the court out of which the process issued, or to the common gaol of the county in which they were arrested, apply to arrests by virtue of writs of capias under 1 & 2 Vict. c. 110.

M. having been arrested in Yorkshire upon a capias under 1 & 2 Vict. c. 110, the defendants executed a bail-bond, by which they undertook that if he should be condemned in the action he should satisfy the costs and condemnation or render himself to the custody of the keeper of the Queen's Prison:-Held, in an action on the bond, the declaration alleging that M. did not render himself to the custody of the keeper of the Queen's Prison, that a plea that M. in due time rendered himself to the common gaol of the county in which he was arrested, was good.

Declaration, that the defendants, on the 25th of June, 1867, at Barnsley, in Yorkshire, came in their proper persons before one Edward Lancaster, then and there being a Commissioner duly appointed and empowered to take and receive all and every such recognizance or recognizances of bail or bails in and for the county as any person or persons should be willing to acknowledge or make before him in any action or suit depending in this honourable court, according to the form of the statute in such case made and provided, and then and there before him, so being such Commissioner, became pledge and bail, and each of them became pledge and bail, for one William Milner, and then and there did jointly and severally undertake that if William Milner should be condemned in an action of debt then depending against him in this honourable court at the suit of the plaintiff, that he should satisfy the costs and condemnation or should render himself into the

NEW SERIES, 38.-Q.B.

custody of the keeper of the Queen's Prison or that the defendants would do it for him which recognizance was afterwards brought into this honourable court to be enrolled and recorded, and thereupon the recognizance, at the request of the plaintiff, was then and there duly enrolled and recorded in this honourable court as by the record of the recognizance still remaining in this honourable court fully appears; and although the plaintiff afterwards, by the judgment of this honourable court, recovered in the action against William Milner 2561. 148. 6d. for her damages, which she had sustained as well by reason of the debt then owing by him to the plaintiff as for her costs and charges by her about her suit in that behalf expended, whereof W. Milner was convicted, as by the record and proceedings thereof still remaining in this honourable court more fully appears, yet he hath not satisfied to the plaintiff the damages, being the costs and condemnation in the recognizance mentioned, or any part thereof, nor rendered himself on that occasion unto the custody of the keeper of the Queen's Prison according to the recognizance; and the recognizance and judgment still remain in force, and the plaintiff has not as yet obtained any execution or satisfaction of the judgment, whereby an action has accrued to the plaintiff to demand and have of the defendants the sum of 256l. 14s. 6d. Breach, that the defendants had not nor had either of them paid the amount or any part of it. There was also the common count for money payable by the defendants to the plaintiff on a recognizance.

Second plea-That the recognizance in the first count is the same as that in the second count, and that William Milner was held to bail on a writ of capias issued under the act 1 & 2 Vict. for, amongst other things, abolishing arrest on mesne process in civil actions, except in certain cases, under which writ he was arrested in the county of York. Averment, that on the occasion in the declaration mentioned William Milner in due time rendered himself to the common gaol of the county in which he was so arrested, according to the form of the statute in such case made and provided.

Demurrer and joinder in demurrer.

H

Ryalls, in support of the demurrer.-The plea is bad. The render relied on by the plea is not a render within the terms of the recognizance. The defendants will contend that the act 11 Geo. 4. & 1 Will. 4. c. 70. s. 21. (1), enabling a defendant in custody under mesne process to be rendered to the gaol of the county where he was arrested, instead of to the prison of the Court where he was arrested, applies to

(1) By 11 Geo. 4. & 1 Will. 4. c. 70. s. 21, "A defendant, who shall have been held to bail upon any mesne process issued out of any of His Majesty's superior Courts of record, may be rendered in discharge of his bail, either to the prison of the Court out of which such process issued, according to the practice of such Court, or to the common gaol of the county in which he was so arrested, and the render to the county gaol shall be effected in the manner following; that is to say, the defendant, or his bail, or one of them, shall for the purpose of such render obtain an order of a Judge of one of His Majesty's superior Courts of Westminster, and shall lodge such order with the gaoler of such county gaol, and a notice in writing of the lodgment of such order, and of the defendant's being actually in custody of such gaoler by virtue of such order, signed by the defendant, or the bail, or either of them, or by the attorney or agent of any or either of them, shall be delivered to the plaintiff's attorney or agent, and the sheriff or other person responsible for the custody of debtors in such county gaol, shall, on such render so perfected, be duly charged with the custody of such defendant, and the said bail shall be thereupon wholly exonerated from liability as such."

By 1 & 2 Vict. c. 110, "An Act for abolishing arrest on mesne process in civil actions, except in certain cases," &c., after reciting that the present power of arrest upon mesne process is unnecessarily extensive and severe, and ought to be relaxed; it is enacted, "that from and after the time appointed for the commencement of this act no person shall be arrested upon mesne process in any civil action in any inferior court whatsoever, or (except in the cases and in the manner hereinafter provided for) in any superior court.'

By section 3, "If a plaintiff in any action in any of Her Majesty's superior Courts of law at Westminster, in which the defendant is now liable to arrest, whether upon the order of a Judge, or without such order,... shall, by the affidavit of himself or of some other person, shew, to the satisfaction of a Judge of one of the said superior Courts, that such plaintiff has a cause of action against the defendant or defendants to the amount of 201. or upwards, or has sustained damage to that amount, and that there is probable cause for believing that the defendant.... or any one or more of the defendants is or are about to quit England unless he or they be forthwith apprehended, it shall be lawful for such Judge, by a special order, to direct that such defendant or defendants so about to quit England shall be held to bail for such sum as such Judge shall think fit, not exceeding the amount of the debt or damages."

an arrest under a capias, according to 1 & 2 Vict. c. 110. But the former act

applies only to mesne process properly so called, and mesne process is altogether abolished by the act 1 & 2 Vict. c. 110. Under the old law a defendant in custody under mesne process could not be discharged except for irregularity, without extinguishing the debt, but if arrested under the new practice he may be discharged without any such difficulty. In Brown v. M Millan (2), it was held that the 7th section of 7 & 8 Geo. 4. c. 71, providing that no sheriff or other officer should upon any mesne process issuing out of the superior Courts, arrest or hold any person to special bail within certain counties, unless the process were indorsed for bail in a sum not less than 50l., did not apply to writs of capias issued under 1 & 2 Viet. c. 110; and Parke, B. says that the words mesne process are used in a different sense in the two acts. In Ireland v. Berry (3) it was held that rule 1. of Trinity Term, 3 Will. 4, did not apply to the case of a defendant in custody under 1 & 2 Vict. c. 110, as the detention was on a proceeding quite collateral, and not a custody under process within the meaning of 2 Will. 4. c. 39.

[Forbes, in support of the plea, referred to rule 106. of Hilary Term, 1853 (4).]

That rule at the most only recognizes the possibility of a render to the county gaol after 1 & 2 Vict. c. 110.

[LUSH, J.-The Queen's Prison is discontinued as a place of imprisonment for debtors by 25 & 26 Vict. c. 104, and Whitecross Street prison is substituted for it. It is impossible, therefore, that the render can be literally according to the terms of the recognizance.]

(2) 7 Mee. & W. 196; s. c. 10 Law J. Rep. (N.S.) Exch. 147.

(3) 1 Dowl. & L. P.C. 866; s. c. 13 Law J. Rep. (N.S.) Q.B. 140.

(4) By Regula Generales, 1853, 106, "on application by defendant or his bail, or either of them, for an order to render a defendant to a county gaol, it shall be specified on whose behalf such application shall be made, the state of the proceedings in the cause, for what amount the defendant was held to bail, and by the sheriff of what county he was arrested, which facts shall be stated in the order; and that on such order being lodged with the gaoler of the county gaol in which such defendant was so arrested, the defendant may be rendered to his custody in discharge of the bail," &c.

The act 1 & 2 Vict. c. 110. contains no provisions as to the render of defendants in discharge of bail, and it was the duty of the defendants to have caused the recognizance to be framed in such a manner as that they might have been enabled to render the debtor to a county gaol.

Forbes, in support of the plea, was not called upon.

Lusн, J.—I am of opinion that the defendants are entitled to our judgment. I speak on this subject with much more diffidence than I should have felt some years ago, but it is my impression that ever since the passing of 1 & 2 Vict. c. 110. there has never been a doubt but that the facilities for rendering defendants in discharge of bail introduced by 11 Geo. 4. & 1 Will. 4. c. 70. s. 21. applied to defendants in custody under 1 & 2 Vict. c. 110. The act 11 Geo. 4. & 1 Will. 4. c. 70. s. 21, which enables a defendant to be rendered to the gaol of the county in which he was arrested instead of to the prison of the court out of which the process issued, uses the words "held to bail upon any mesne process." But the term "mesne process" equally applies to process by writ of capias under 1 & 2 Vict. c. 110. The distinction between the two kinds of process is, that whereas before the passing of this last act mesne process might be issued at the will of the party and before the commencement of an action, it can now only be issued by special order of a Judge at chambers, and is entirely collateral to the action itself. It is an interlocutory process, the object of which is not to keep the debtor in prison as a satisfaction of the debt, but to secure his person so as to prevent him from going abroad. But I think that until now no one ever doubted that the existing power of arrest was within the meaning of 11 Geo. 4. & 1 Will. 4. c. 70. I am clearly of opinion that assuming that the recognizance was properly framed, a render to the county gaol would have been a good discharge of the bail before this act; and this brings us to the question, is it a good discharge of the present recognizance? I do not mean to say that the recognizance might not have been framed so as to express with more accuracy what the defendants were bound to do, but we must read it so as to give effect to the intention of the

parties if the words enable us to do so. Now the words of the obligation are, "that W. Milner should satisfy the costs and condemnation or should render himself to the custody of the keeper of the Queen's Prison;" and the question is whether W. Milner has been rendered so as to discharge this obligation. No doubt when the form of the recognizance was first prepared the Queen's Prison meant the old prison belonging to this court, but when the defendants entered into their obligation an act of parliament had forbidden that this prison should any longer be used for the imprisonment of debtors. The words "Queen's Prison" can now therefore be used in no other sense than that of any prison of the Queen to which the defendant may lawfully be rendered, and the plea affords a good answer to the action by shewing that there was a render to the county gaol, which, by 11 Geo. 4. & 1 Will. 4. c. 70, was substituted for the prison of the court out of which the process issued.

HANNEN, J.—I am of the same opinion. The question is, what have the bail agreed to do? They have agreed that the debtor shall satisfy the costs and condemnation or render himself into the custody of the Queen's Prison. Now, the defendant could not render himself to a prison which was no longer available for the imprisonment of debtors, and I take it that what was meant was that he should render himself according to the ordinary practice at the present time; and I see that, in the 9th edition of Chitty's Forms, in the form of recognizance of bail, the obligation is to render the defendant to the custody of the keeper of the Queen's Prison, so that the old words are still used, I suppose because it was thought that they would receive the same construction as under the former mesne process. Now that the Queen's Prison as such has been abolished the words must mean that the render shall be to the prison which is in the place of the Queen's Prison. The act 1 & 2 Vict. c. 110. is intituled 'An Act for abolishing arrest on mesne process in civil actions, except in certain cases,' clearly shewing that the legislature intended that in some instances mesne process should continue to exist, and the process by special order under this act is something in lieu of mesne process, and therefore subject to the

Cargo

Shipping-Charter-Party-Discharge of Reasonable Time-Contract implied by Law-Action.

Where a charter-party is silent as to the time to be occupied in the discharge of cargo at the port of destination, the law implies a contract to discharge within a reasonable time. But where delay in the discharge takes place owing to unforeseen circumstances at the port of destination, over which neither the charterer nor the shipowner, whose joint duty it is to deliver the cargo, had any control, and neither party has undertaken by contract, express or implied, that there should be no delay, any loss arising therefrom must remain where it lies, and cannot form the subject of an action.

The first count of the declaration stated that the plaintiffs and the defendants agreed by charter-party that the plaintiffs' ship called the Craigie Lea, then being in the port of Liverpool, should immediately be made ready to receive cargo, and should then be loaded according to the defendants' orders, and proceed with all convenient speed to Lima or Valparaiso, and that the defendants should load her with a full and complete cargo of lawful merchandise, which she should carry as aforesaid, and then deliver to the defendants' consignees, in consideration of certain sums in the said charter-party in that behalf respectively mentioned, and upon the terms (amongst others) that the said ship should be unloaded at the port of discharge by the defendants' consignees with all due and reasonable despatch, and within a reasonable time for so doing; that the said ship was made ready and loaded by the defendants under the said charter-party, and by their orders

proceeded to Lima, and safely carried the said cargo to Lima aforesaid, and was then ready to deliver the same to the defendants' consignees according to the said charterparty, whereof they had also due notice; and all conditions were fulfilled, and all things happened, and all times elapsed necessary to entitle the plaintiffs to have the said charter-party performed by the defendants on their part, and to have the said vessel unloaded and discharged of her cargo by the defendants' consignees within a reasonable time in that behalf. Yet the defendants' consignees did not nor would unload the said ship at her said port of discharge with due and reasonable despatch, nor within a reasonable time in that behalf for so doing, and also delayed, kept and detained the said ship for divers long and excessive and unreasonable periods of time in unloading and discharging the cargo out of the same, whereby the plaintiffs during all those times aforesaid were deprived of the use of the said ship, and incurred expense in keeping the same and maintaining the master and crew thereof, and were put to extra cost in and about insuring the same, and lost and were deprived of the benefit of divers homeward charters which could and but for the aforesaid wrongful detention of the said ship would have been made. There were also counts for the demurrage of the ship, and for money upon an account stated.

Third plea-That it was by the said charter-party provided that the defendants should not be liable in respect of (amongst other things) any delay in the unloading of the said ship, or for any delay, keeping or detention thereof caused by the acts or restraints of princes and rulers; and that the defendants were always ready and willing to unload the said ship with due aud reasonable despatch and within a reasonable time in that behalf, and the defendants did not delay, keep or detain the said ship for any long, excessive or unreasonable period in unloading the same, but used the best care and despatch in the premises; but that the said delay complained of by the plaintiffs in the unloading of the said ship was caused solely by the matters and things beyond the power and control of the defendants and by the said charterparty provided to be excepted, to wit, by

the acts and restraints of princes and rulers, within the meaning of the said charterparty.

Issue thereon.

At the trial, which took place before Cockburn, C.J., at Guildhall, at the Sittings after Trinity Term, 1868, it appeared that the defendants, on the 24th of July, 1865, chartered at a lump sum the plaintiffs' ship, the Craigie Lea, from Liverpool to Valparaiso or Lima. The charter-party fixed the number of days for loading the ship, but was silent as to the time to be allowed the charterers for unloading at the port of destination, merely providing that the ship should proceed there, or as near as she could safely get, and then deliver the cargo in the usual and customary manner agreeably to bills of lading. The Craigie Lea arrived at Callao, the port of Lima, on the 26th of February, 1866, and lay waiting to discharge from that day down to the 9th of March. The Peruvian Government allow no cargo to be landed at Callao except through the Custom House, and the ordinary discharge of a ship at that port, owing to the dilatoriness both of the authorities and the persons employed about the port, the absence of the usual appliances and the total want of organization which prevails there, is very slow. At the time of the arrival of the Craigie Lea, the usual difficulties attendant upon the unshipping of goods at Callao were increased in an extraordinary degree by reason of the political disturbances which prevailed in the country, and the fact that hostilities with Spain were imminent. The Craigie Lea commenced unshipping goods on the 9th of March, and continued discharging small portions of her cargo from time to time as launches could be procured for the purpose, down to the 11th of April. On that day news of the bombardment of Valparaiso by the Spanish Fleet arrived at Callao, and thereupon the Custom House authorities refused to permit the landing of more goods; and on the 18th of April issued orders to the captains of ships in the port to remove from their discharging places. The Craigie Lea, nevertheless, remained at her moorings until the 26th of April, on which day the Spanish Fleet arrived off Callao; and being in the line of fire she then removed under the direction of the

Spanish Admiral from Callao to the north side of the bay. The blockade of Callao continued from the 26th of April until the 10th of May, on which day the Spanish Fleet sailed away from Callao; and on the 12th of May the Craigie Lea returned to the discharging place, and recommenced unloading and completed the discharge of her cargo on the 21st of June.

The Lord Chief Justice ruled that the charter-party being silent as to the time for unloading at the port of destination, there was an implied contract on the part of the defendants to discharge within a reasonable time, and left to the jury the questions, first, whether looking to the ordinary state of circumstances at the port there was any unreasonable delay on the part of the defendants; secondly, whether looking to the existing or extraordinary circumstances at the port there was any unreasonable delay, reserving for the Court the question whether the plaintiffs' claim was to be decided with reference to the ordinary or extraordinary state of circumstances, and directing the jury to assess the damages provisionally in respect of the seven days, from the 11th to the 18th of April, during which the ship was at the discharging place, but unable to unload by reason of the refusal of the custom-house authorities to suffer goods to be landed. The jury found that there was no unreasonable delay on the part of the defendants under either the ordinary or extraordinary circumstances, and assessed the amount due for demurrage for the seven days (if any) at 157. a day; whereupon the Lord Chief Justice directed a verdict to be entered for the defendants, reserving leave to the plaintiffs to move to set aside the verdict with respect to the seven days and enter a verdict for the plaintiffs.

Field obtained a rule, in pursuance of the leave reserved, calling upon the defendants to shew cause why the verdict should not be set aside, and a verdict entered for the plaintiffs for 1057., or such further sum as the Court might direct, or for a new trial, upon the ground that the cargo was not discharged within a reasonable time, the delay having been caused by political and other extraordinary circumstances not within the contemplation of the parties; and also that the verdict was against the evidence. Milward and C. Russell shewed cause.