Montgomery v Middleton & Pollexfen

• Jurisdiction: Ireland
• Judgment Date: 30 June 1862
• Date: 30 June 1862
• Court: Court of Common Pleas (Ireland)

Common Pleas.

MONTGOMERY

and

MIDDLETON & POLLEXFEN

Shadforth v. HigginsENR 3 Camp. 385.

Glaholm v. Hayes 2 M. & Gr. 267.

Crookewit v. FletcherENR 1 H. & N. 893.

Parker v. WinlowENR 7 El. & Bl. 948.

Brown v. JohnsonENR 10 M. & W. 331.

Brereton v. ChapmanENR 7 Bing. 549.

Whitwell v. Harrison 2 Ex. R. 135.

Soames v. LonerganENR 2 B. & C. 564.

Lang v. AndersonENR 3 B. & C. 498.

Graham v. BarrettENR 5 B. & Ad. 411.

Moir v. Royal Exchange Insurance CompanyENRENR 4 Camp. 85; S. C., 6 Taunt. 241.

Lindsay v. JansonENR 4 H. & N. 699.

Jarman v. CoapeENRENR 2 Camp. 613; S. C., 13 East. 394.

Dagleish v. BrookeENR 15 East. 295.

Smith ThompsonENR 8 C. B. 44.

Williams v. MarshallENR 6 Taunt. 596.

Mellish v. StaniforthENR 3 Taunt. 499.

Reyner v. PearsonENR 4 Taunt. 662.

Thompson v. GillespieENR 5 El. & Bl. 209.

Wells v. HopwoodENR 3 B. & Ad. 20.

Hutcheson v. BowkerENR 5 M. & W. 535.

Neilson v. HarfordENR 8 M. & W. 823.

Levin v. NewnhamENR 4 Taunt. 722.

Kell v. AndersonENR 10 M. & W. 498.

Reyner v. PearsonENR 4 Taunt. 662.

Levin v. Newnham Ibid, 722.

Jarman v. CoapeENR 13 East, 394.

Dagleish v. BrookeENR 15 East, 295.

Lindsay v. JansonENR 4 H. & N. 699.

Mellish v. StanniforthENR 3 Taunt. 500.

Lindsay v. JansonENR 4 H. & N. 699.

Neilson v. HarfordENR 8 M. & W. 823.

Hutcheson v. BowkerENR 5 M. & W. 535.

Wells v. HopwoodENR 3 B. & Ad. 20.

Parker v. WinlowENR 7 El. & Bl. 948.

Browne v. JohnsonENR 10 M. & W. 331.

Keyser v. ScottENR 4 Taunt. 660.

Reyner v. PearsonENR 4 Taunt. 662.

Reyner v. HallENR 4 Taunt. 725.

Dagleish v. BrookeENR 15 East, 295.

Jarman v. CoapeENR 13 East, 394.

Whitwell v. Harrison 2 Ex, R, 127,

Lindsay v. Janson 4 Ex., N. S., 699.

Samuel v. Royal Exchange Insurance Co.ENR 8 B. & C. 119.

COMMON LAW REPORTS. 173 inferred that the opinion of the Court was, that legal estates passed to individuals, we cannot consider these cases as authorities to bind us in a case like the present, where we have nothing to do with any charitable trust that may have been created. If any such is supposed to exist in the present case, the Court of Chancery is the only Court to deal with it. We merely decide that no legal estate passed by the will, and therefore, that the verdict had for the plaintiffs, one of whom is the heir-at-law of the testator must stand. E. T. 1862. CommonPleas. HOGAN V. BYRNE. E. T. 1862. April 26, 28, 29. ThereThere were several counts in the summons and plaint. Defend the plaintiff ants, among other defences, pleaded that it was a term of the and the de fendants, for agreement that, should the vessel not arrive on or before the the sale and purchase of the 20th of June, the contract should be void ; and that the vessel cargo; and one of terms did not in, fact arrive on or before the 20th of June, and that was the that, if " Surf S " the therefore the defendants refused to accept the cargo. did not " ar rive " on or before the 20th of June, the contract should be void. The " Surf " arrived prior to the 20th of June, at a place called " Oyster Island," about four miles from Sligo, and within the natural port and harbour of Sligo. It appeared that vessels anchoring at Oyster Island report themselves to the custom-house of Sligo, and become liable to port and harbour dues. The " Surf " did not arrive at the quay of Sligo until after the 20th. The defendant having at the trial relied upon the breach of condiÂÂtion, the LORD CHIEF JUSTICE ruled that the term " arrive," in the condition meant " at the quay of Sligo ; " and he accordingly directed a verdict for the defendÂÂants. The facts having been stated in special case for the opinion of the Court-Held (per KEOGH and CHRISTIAN, JJ., MONAHAN, C. J., dissentiente), that the question of arrival was one of fact, and should have gone to the jury. Held, per MONAHAN, C. J., that the question entirely turned upon the meaning of the word " arrive " in the contract, and was one of law, to be determined by the Court. 174 COMMON LAW REPORTS. E. T. 1862. The only question in controversy at the trial was, whether in CommonPleas. fact the vessel had arrived on or before the 20th of June as re MONTGOMERY V. quired by the contract ? MIDDLETON. The case came on for trial at the Sittings after' Michaelmas Term 1861, before the LORD CHIEF JUSTICE ; and his Lordship directed a verdict for the defendants ; and by consent of the parties the facts following were to be taken as if found by the jury, and to form a special case. The facts are as follows :-The port and harbour of Sligo are regulated by the statute of 9 Vic., c. 24, and the Consolidated Acts ; and by said Acts the said port and harbour extend from the bridge of Sligo to the "Wheaten Rock," a place in the ocean, and about ten miles from Sligo ; and the Admiralty map, which was proved at the trial, is referred to in, and incorporated with, the special case, as a description of the localities; but the soundings of the map are not accurate, the harbour having been improved within the last six or eight years. The defendants are merchants in Sligo, and at the time of the contract of 23rd of May 1861, knew the channel and tides and usages of the port of Sligo. The port of Sligo is a tidal port, at which, owing to the shallowness of the river, vessels drawing more than fourteen feet of water cannot come up to the quays, and vessels drawing twelve feet of water or more cannot get up to the quays, except on very favorable neap tides, or at spring tides, which occur at intervals ; and which spring tides last three or four days, an interÂÂval of six or seven days occurring between the end of one spring tide and the commencement of another. Within the municipal and parliamentary boundaries of the borough of Sligo there are three quays for the discharge of cargoes of vessels. The quays are suited to vessels drawing different draughts of water, and the most important of said quays is the most seaward, and is called " The Ballast-quay : " and the map of such municipal and parliamentary districts is referred to and incorporated in this special case. There is an island called " Oyster Island," distant from the quays of Sligo about four miles; and the said Oyster Island is within the natural port and harbour of Sligo. Ballyshannon, a town in the county of Donegal, and about twenty miles from Sligo, is, for custom-house COMMON LAW REPORTS. 175 purposes, within the port of Sligo. By the usage anti custom of E. T. 1862.. , the port of Sligo, vessels bound for Sligo of such a draught as Commo7Pleas. MONTGOMERY permits their going up to the wharfs, either go up• to the, quays at. once, if wind and tide permit, or they drop anchor at Oyster Island,. MIDDLETON. and report themselves at the custom-house, and they are then liable to custom-house and port dues. If vessels are of a draught of water too deep to enable them to go up even with the spring tides, they discharge part of their cargo at Oyster Island, or at a place called The Pool, where the holding ground is better than at Oyster Island, and about half a mile nearer the quay; and such partial discharge in both cases is into lighters, at the expense of the consignee. Such vessels when sufficiently lightened, that is to say, lightened to a draught of about twelve feet of water, go up to the quay side ; but if they cannot be sufficiently lightÂÂened to get up to the quay, they discharge their entire cargo at Oyster Island, or The Pool, into lighters, at the expense of the consignee. As to vessels about twelve feet or thirteen feet draught of water, if they drop anchor at Oyster Island, they then report themselves, and are bound by the first spring. tide to go up to the quay side, and there discharge cargo ; and. the lay days, commence to run and count after such arrival at the quays, and when the ships are ready for discharging cargo there. Whenever vessels are under charter to discharge afloat, they disÂÂcharge cargo either at Oyster Island or at the Pool, irrespectively of draught or tonnage ; and at both places, to, wit, Oyster Island' and The Pool, it is into lighters that the cargo is discharged, at the expense of the consignee. At Oyster Island there was and is no quay for discharging cargoes ; but there is an anchorage between the mainland and Oyster Island ; but the holding ground not being good, there are mooring posts on the mainland on one side, and on the island on the other side, to moor vessels to, and to keep them safe at anchor ; and which vessels when so moored ride in the sound or stream between the mainland and the island. In the case of vessels of too deep a draught to go up to 'the quays with full cargo, the lay days are counted during the process of 176 COMMON LAW REPORTS. being discharged, or from the time they are ready to be discharged at Oyster Island or The Pool ; and then they cease to be counted until the vessels proceed to the quays, and are again ready to recommence discharge of cargo. A. certain reef of rocks, called " The Blennicks," exists between Oyster Island and the quay, which reef, in certain states of the wind and weather, is a source of danger to vessels going up to the quays from Oyster Island ; and the witnesses mentioned some three or four instances of vessels having been injured thereon. The contract of the 23rd of May, upon which the action was brought, was entered into in duplicate, and proved at the trial, which is as follows :- " Sligo, May 23, 1861" "Purchased from James Pim & Co., Dublin, agents for MontgoÂÂmery Brothers, New York, the cargo of mixed maize, shipped per " Surf,' from New York, consisting of say 9906 bushels, in bags, as "per bill of lading, dated April 23rd 1861, at the price of 35s. 6d., "say thirty-five shillings and sixpence per quarter of 480 lbs., deliÂÂ" vered cost, freight and insurance, now on passage to Sligo direct." " Condition guaranteed on discharge ; slight heat, not injuring the " grain, not to be objected to ; any damaged, to seller's account." "Buyers...