AARON V. CHAUNDRY.

ADOLPHUS on a former day obtained a rule nisi for

1824.

Saturday, January 31. After issue

note, plaintiff,

setting aside the judgment of non pros. signed by the joined in assumpsit on a defendant in this case, for irregularity, with costs. It was promissory an action upon a promissory note, and the defendant, having being ruled to pleaded non assumpsit, made up the issue, and ruled the plaintiff to enter it. The plaintiff entered it with a plea of not guilty, instead of non assumpsit; upon which the defendant signed his judgment of non pros.

was

enter the issue, entered a plea of not guilty, instead of non assumpsit, whereupon defendant signed judgment of non

pros. but the court set it

Campbell now showed cause, and contended that, inasmuch as the plaintiff had not entered the issue which actually joined in the action, there was no irregularity in aside without the defendant signing judgment of non pros. He relied upon Wood v. Miller. (a)

Adolphus, in support of the rule, was stopped by the Court.

ABBOTT, C. J.-This case is perfectly distinguishable from Wood v. Miller. That case only decided that the issue must be entered as of the term when the rule to reply was given and the similiter joined, and not as of the preceding term, when the plea was given. The objection there was, that the issue was entered as of a wrong term. In substance, the plea of Not Guilty, in a case like the present, is the same as non assumpsit; but where so much carelessness is apparent, we shall make the rule absolute without costs.

costs.

Rule absolute without costs.

(a) 3 East, 204.

1824.

Saturday,

January 31.

By 43 G. 3.

in the United Kingdom to

any part beyond sea, a greater num

than in the

proportion of one for every

two tons of the burthen of the ship;

BISHOP and Another v. MACINTOSH and Another.

ASSUMPSIT. The declaration stated, that in considerc. 56. s. 2. it is ation that the plaintiffs had sold and delivered to the dedeclared unlawful to con- fendants certain ships' stores, and had also effected a policy vey in any ship of insurance on a vessel called The Hope, on a voyage from from any place England to New South Wales, for 3321. to be received by the plaintiffs in New South Wales, at the termination of the voyage, the defendants undertook (unless prevented ber of persons therefrom by inevitable accident) that they would cause the voyage to be performed, and the money to be paid to the plaintiffs at New South Wales, within a reasonable time. Averment that the defendants did not, although not prevented therefrom by inevitable accident, cause the voyage to be perand every ship shall be deen- formed, or the money to be paid within a reasonable time. Plea, non assumpsit. At the trial before Abbott, C. J. at the Middlesex sittings, after last Michaelmas term, the case was this:-The plaintiffs had shipped on board the defendants' vessel, called The Hope, a quantity of ships' stores to be carried to New South Wales, and had effected a policy of insurance on the vessel for the voyage, in purnot be lawful suance of a stipulation on the part of the defendants, for for the master that purpose. The vessel sailed from London, and on her board a greater arrival at Ramsgate, she was detained by the officers of number of per- the customs, on the ground that she had a greater number the crew, than of passengers on board, proportioned to her tonnage, than in the proportion of one was allowed by 43 Geo. 3. c. 56. s. 2. (a) It appeared person for every two tons

ed of such

burthen as is

set forth in the

certificate of registry: and if any ship shall be partly laden with goods,

then it shall

to receive on

sons, including

(a) By which it is enacted, "That it shall not be lawful to convey of that part of from any place in the United Kingdom to any parts beyond sea, in any the ship re- ship, a greater number of persons, whether adults or children, including maining un- the crew, than in the proportion of one person for every two tons of laden. Where the burthen of such ship or vessel: and every ship shall be deemed a vessel regis- and taken to be of such tonnage or burthen as is described and set forth tered at 230, in the respective certificate of the registry of each and every such ship; but in fact and if any such ship or vessel shall be partly laden with goods, wares, measuring 269 or merchandise, then it shall not be lawful for the master to receive or tons burthen, take was partly laden with goods, and carried passengers in proportion to her measured tonnage: held that she was to be deemed only of the tonnage described in the certificate of registry, and that her actual tonnage could not be taken into consideration.

that in the certificate of the ship's register she was stated to be of the burthen of 230 tons, but in point of fact she measured 269 tons. She was partly laden, and had 90 passengers on board, and a crew of 17 men, including the master. Her cargo was stowed in the hold, and not between decks. On the part of the defendants it was admitted that, if the vessel was to be deemed and taken as of the burthen stated in the register, there were more passengers on board than the law allowed, and consequently the detention of the vessel by the officers of the customs was justifiable; but it was contended that, according to the true construction of the act of parliament, the vessel had no more passengers on board than she was allowed to take, and consequently, the detention being unlawful, the defendants were not liable in this action, inasmuch as they were hindered and prevented from performing the voyage, by inevitable accident, within the meaning of the contract. The Lord Chief Justice was of opinion that, according to the sound construction of the 43 G. 3. c. 56. s. 2. the certificate of the ship's register must be deemed and taken to be conclusive evidence of her burthen; and it being admitted that the vessel had more passengers on board in proportion to her burthen so evidenced than the law allowed, the plaintiff was entitled to a verdict. The plaintiff had a verdict accordingly, and

now

Copley, A. G. moved for a new trial, and contended that, although the tonnage mentioned in the register was 230; yet inasmuch as the vessel actually measured 269 tons, the number of passengers was not disproportioned to the tonnage, and consequently she was not liable to seizure.

take on board a greater number of persons, including the crew, than in the proportion of one person for every two tons of that part of such ship or vessel remaining unladen; and such goods, wares, and merchandise, shall at the sight and under the direction of the collector or comptroller, or other officer of the customs, at the port or place where such goods, wares, and merchandize, shall be taken on board, be bestowed and disposed of in such manner as to leave good and sufficient and wholesome accommodation for the proportion of persons thereby allowed in such case to be received on board."

1824.

BISHOP

v.

MACINTOSH

1824.

BISHOP

v.

MACINTOSH.

It may be true that with respect to a vessel not carrying a cargo, the tonnage is to be deemed and taken to be that mentioned in the certificate of the ship's register; but still, if the vessel is only in part laden with goods, then the actual tonnage may be taken into consideration; and therefore the vessel having been improperly detained, the defendants come within the exception contained in the contract between the parties.

ABBOTT, C. J.-We are all of opinion that this case is too plain for argument. The words of the Act admit of no doubt, that whether a vessel be partly laden or not with goods, she shall be deemed and taken to be of such burthen as is described and set forth in the certificate of her register. Here the vessel was described in the certificate of the register as being of the burthen of 230 tons only, and we think that her actual admeasurement cannot be taken into consideration in calculating the number of passengers taken on board.

Rule refused. (a)

(a) The statute abovementioned has been since altered by an act of the present session of parliament.

Tuesday,

February 3.

Where the de-
ponent,
in an
affidavit to

hold to bail,
described him-
self as of Dor-

set Place,

Clapham Road,
Middlesex,

PLATT,

COLLINS v. GOODGER.

on a former day, had obtained a rule calling on the plaintiff to show cause why the bail bond given by the defendant should not be delivered up to be cancelled, and common bail filed, for an objection to the affidavit to hold to bail. The plaintiff was described in the affidavit to hold to bail as of "Dorset Place, Clapham Road, Middlesex ;" whereas the true description of his residence was "Dorset Dorset Place, Place, Clapham Road, Surrey." He referred to the rule Clapham Road, of Court, Mic. 15. Car. 2. which requires that every affidaSurrey, the Court ordered vit to hold to bail shall state the true place of abode, and the true addition of the person making it.

and his true residence was

the bail-boud

to be can

celled, and a

common appearance entered.

Andrews urged for cause against the rule, that, as the defendant had not been at all misled by the mistake, the objection ought not to prevail.

ABBOTT, C. J. The rule of Court expressly requires, that the true place of abode of the deponent shall be set forth in the affidavit; and unless we adhere to a rule so expressed, we should open a door to the greatest laxity and carelessness. The rule must be made absolute.

1824.

COLLINS

2.

GOODGER.

Rule absolute. (a)

(a) Vide Tidd, 194.; 1 Archbold's Pr. 51. citing 1 East, 18; 3 East, 154; 1 M. and S. 103; 11 East, 528; 3 M. and S. 165; 3 B. and P. and 4 Taunt. 154.

550;

DoE d. Rev. JAMES HARRIS, Clerk, v. GEORGE MASTERS.

pre

Tuesday, February 3.

payment of

the proviso was, that, if

EJECTMENT for a certain chapel, called Spring Gar- In ejectment den Chapel, situate in Spring Gardens, in the parish of St. feiture of a upon the forMartin in the Fields, in the county of Middlesex. The lease for nonlessor of the plaintiff went for a forfeiture, by reason of a rent, where breach of covenant contained in a lease of the demised mises, for non-payment of rent. Plea, not guilty. At the the rent was trial before Abbott, C. J. at the Middlesex sittings after last in arrear for twenty-one Trinity Term, a verdict was found for the plaintiff, subject days, the lessor might reto the opinion of the Court on the following case.-By a enter, "alcertain indenture of lease, bearing date 7th March, 1821, though no formal or legal and made between the lessor of the plaintiff, James Harris, demand shall of the one part, and the defendant George Masters, of the be made for

payment thereof:" held,

that ejectment for non-payment of the rent within the time stipulated might be maintained against the lessee, without demanding the rent, or actually re-entering the premises.

Although this case might not be strictly within the stat. 4 G. 2. c. 28. sec. 204., yet the Court refused to relieve the tenant by staying proceedings, upon bringing the rent in arrear, and the costs of the ejectment, into Court after trial.