one Harding, on the 17th October, 1861, in order to obtain possession of the oil. Macaulay, E. James, and Raymond for the plaintiff. Hawkins and Holl for the defendants. On the 18th June, 1861, the previous owner, Gerusi, landed and warehoused at Hey's Wharf, belonging to the defendants a public wharf or warehouse-244 casks containing 118 tuns of oil, the charges on which were duly paid up to the time of the fire, and which were insured with the company now suing. On the 22nd June, 1861, a fire happened at the wharf, when a great quantity of oil was destroyed or damaged by fire. The oil in question lay in certain vaults, where it was comparatively little injured. The rest of the oil constituted what is called salvage, and was upon the open quays, having been removed during or after the fire, more or less in a state not to be identified. The insurance companies at once appointed a salvage committee, who, by their agent, Harding, of the firm of Toplis & Harding, auctioneers, took possession of the defendants' warehouses, and all salvage therein, from that time until the subsequent sale. On the 28th June, Fletcher, secretary to the fire office committee, wrote to the defendants, giving them notice. that Toplis & Harding were to act for them; and desiring the defendants to assist them. And in consequence of this, goods were from time to time delivered by the defendants to the order of Toplis & Harding. The defendants had declined, however, to deliver any goods until they had a guarantee. On the 25th July, Toplis & Harding gave them a guarantee in these terms :-" In consideration of your consenting to execute any orders for the delivery of goods, which I may give, authorizing any goods to be delivered. 1862. GRANT v. HUMPHERY and Another. 1862. GRANT บ. HUMPHERY from Hey's Wharf by men in my employ, I hereby undertake to bear you harmless against any loss, &c., that may arise from your so doing, and will engage to pay any lien and Another. or charge which you may have on the goods so delivered, to the net amount of the proceeds of the sale of such goods." Signed by Harding, as " surveyor to the salvage committee." After the fire the defendants did not debit any charges against any of the goods, but charged only the auctioneers, the company's agents. On the 1st Oct. 1861, Toplis & Harding sold the oil in question, which was the last left in the warehouses; and the defendants then, not having received any payment on account of the rent due on the other oil, stopped the oil in question for payment of the whole warehouse rent due, amounting to 540l. The defendants' account up to the time of sale was as follows, making, it will be observed, charges in gross :1861. Sept. 28.-14 weeks' rent of three When the oil was demanded by the purchaser on the order of the auctioneers, the defendants' account had the following further items: : Oct. 12.-Rent on offices from 29th June £30 0 0 17. On the 11th October, Harding wrote to offer payment of the charges due on the oil detained. This, however, the defendants declined to accept, and they claimed payment of the whole, which was eventually paid to them. The oil in question lay in cellars under the quay, and was all in such a state that it could be identified, although part of it was somewhat injured. The case for the plaintiff was, that when the loss was adjusted on the insurance by them of the oil in question the oil became the property of the company, and that it was not salvage, and was quite separate from the amalgamated salvage. The case for the defendants was, that Harding was authorized by the salvage committee to assume the control of the whole of the salvage, on behalf of the committee, as ostensible owners, that the plaintiffs were represented on that committee, and that the lien was entire. Harding, however, was called on the part of the plaintiff, and stated that until September he never even heard of the oil now in question, and that it formed no part of the amalgamated salvage; and his delivery orders, which were put in, were all for the delivery of salvage. He further stated that he never communicated to the defendants that he acted for any other parties than the committee, but that he sold this oil for and on account of the now plaintiff, and had stated this to the defendants, and that the oil was included in the settlement of the loss upon the policy of insurance thereon effected with the plaintiff. Upon this evidence, COCKBURN, C. J., was of opinion that this oil was never dealt with by Harding as any portion of the salvage, or on the part of the committee, but as the agent only of the plaintiff's company, and that all that the defendants were entitled to claim upon it was the amount of the charges on this particular oil. Besides, even supposing that Harding acted as the agent of the committee as to this oil, and that 1862. GRANT v. HUMPHERY and Another. 1862. GRANT บ. HUMPHERY and Another. the defendants would have a lien on the whole, for their charges; this would not justify them in detaining this lot from the purchaser for the charges on the whole. The lien would be on all the oil, and they would have a right to detain all; or, as to each portion of it, they could claim the lien pro ratâ, but they could not let all the rest go free and then claim the lien, as to this last lot, for the charges on all the rest. He should, therefore, direct a verdict for the plaintiff, but reserve leave to the defendants to move to set it aside and enter it for them, the Court to have power to draw inferences of fact. (a) As to the oil blended and not identified, there might be an entire contract of bailment, and therefore an entire lien, i. e., a lien on each part for the whole because the legal property would be lost; so that a bill in equity by all the owners for an account would be the only remedy; Jones v. Moore, 4 Y. & C. 351. But it would be otherwise as to the oil in question, the property in which was not lost, as its identity remained; and as to which, therefore, apart from express contract or custom, there would not be a lien for the charges on the whole of the oil. An express contract is the strongest and surest ground on which a lien can in any case be placed; and on that ground alone it was held that the owner of a ship had on the terms of a charter-party a lien on a particular portion of the goods, even as against an indorsee under a bill of lading, for the balance due on the freight for the Verdict for the plaintiff (a). entire cargo; Small v. Moates, 9 Bing. 575. The lien of the shipowner was there prior and paramount, by express contract; but it was left doubtful, even on the custom of trade in London, whether a warehouse-keeper could detain goods for all that was due from the person who deposited them for other goods deposited by him; Ayling v. Williams, 5 C. & P. 399. Even as against the same owner there must either be a custom or contract to create a lien for a general balance or a general lien; Bowman v. Malcolm, 11 M. & W. 833. But here, as to the oil in question, the ownership was distinct, as already shown. Hawkins moved in M. T., but took nothing, except a rule as to damage. See Dresser v. Bosanquet (Treasurer of Commercial Dock Company) Q. B. M. T. as to general lien of wharfingers or warehousemen. 1862. DIMSDALE v. THE LONDON AND BRIGHTON RAILWAY COMPANY. London Sittings. Trinity Term. ACTION on a bailment by the plaintiff to the company When a pas of a portmanteau, to be delivered to him, for hire and re ward in that behalf. Breach non-delivery. Plea (inter alia): a lien for charges. There was also a count in trover. Plea: not guilty. Coleridge and J. O. Griffits for the plaintiff. Bovill and Hannen for the defendants. senger leaves charge warehouse room for they cannot it, if, how- wards detain it for any petty charge, the proper course is to pay the charge, and sue to recover County Court; and if the article is ready for delivery it in the The plaintiff was a clerk in the service of Messrs. Howard & Co., solicitors, in Paternoster-row; and, on them of finding and identithe 29th of October last, his wife came up to London fying it; but from Brighton in a third-class carriage, carrying a dog with her. At the Brighton station she was told she must pay 2s. 2d. for the carriage of the dog, according to the usual charge made by the company; but, as it so happened, she had no money in her pockets, but only a cheque, and under these circumstances the company's servants detained her portmanteau, gave her a "dog-ticket," and told her she could pay the 2s. 2d. when she got the portmanteau in London. The plaintiff sent several times to inquire after her portmanteau, but could hear no tidings of it. At length, on the 16th of November, the plaintiff sent a clerk, who made a formal tender of the 2s. 2d., and demanded nal, whether on "a portmanteau," at the same time producing the "dog- a special count ticket" and the card of Messrs. Howard & Co., in whose service the plaintiff was, with the plaintiff's name written in pencil on the back. Inquiries were made for a portmanteau belonging to "Mr. Howard," but none such could be found. The plaintiff's portmanteau had no direction upon it, but only the words "Mrs. Dimsdale, passenger, Lon the damage may properly be only nomi or on a count in trover. |