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*Tucker v. Tucker, 4 B. & Ad. 745 (E. C. L. R. vol. 24), S. gave a bond conditioned for the payment of money. The obligee [*281 made C. his executrix and residuary legatee, and died. C. proved the will, assented to the bequest, and died, not having fully administered, leaving E. executrix of the executrix C., in trust for her (E.'s) own benefit. A sum due on the bond in the first testator's time remained unpaid. C., during her lifetime, in consideration of a marriage about to take place between her and the father of S., gave a bond to a trustee, conditioned for payment of a sum of money to the use of S. if C. should marry and survive her intended husband. She did marry and survive him, and, the money not having been paid in her lifetime, the trustee's executor sued E., the executrix of C., upon that bond. And it was held, that, in this action, the claim of C. upon S.'s bond could not be set off. Two MS. cases, Bottomley v. Brook, cited 1 T. R. 621, and Rudge v. Birch, cited 1 T. R. 622, were relied on in support of the set-off. But Littledale, J., said: "I think Bottomley v. Brook was not properly decided, and that, under the statutes of set-off, the Court can only notice an interest at law." [KEATING, J., referred to Isberg v. Bowden, 8 Exch. 852.† There, to an action for freight due upon a charter-party, the defendant pleaded, that the plaintiff entered into the charter-party as the master of the vessel, and for and on behalf and as agent for the owner; that the plaintiff never had any beneficial interest in the charter-party, nor had he any lien whatever on the freight; and that he brought the action solely as agent and trustee for the owner. The plea then proceeded to state that the owner was indebted in a certain sum to the defendant, which he thereby offered to set off against the plaintiff's demand. And it was held that such debt was not "a mutual debt between the plaintiff and the *defendant," within the true meaning of the statutes of set-off, [*282 2 G. 2, c. 22, s. 13, and 8 G. 2, c. 24, and therefore that the plea was bad and that the statutes of set-off are confined to legal debts between the parties, their sole object being to prevent cross-actions between the same parties.]

Collier, Q. C. (with whom was Hance), contrà.-The assignment of the debt, which is perfectly lawful, though the assignee cannot sue for it in his own name,-deprives the defendant of his right to set off the judgment against the plaintiff on the record: and the replication, which alleges that the plaintiff is suing as trustee for Smith, and that the defendant had notice of the assignment before the judgment was obtained, is a perfectly good replication. [BYLES, J.-At law, nothing passes by the assignment of a chose in action.] One may sue as trustee for another; and such a right would not pass to his assignees, in the event of bankruptcy: Houghton v. Koenig, 18 C. B. 235 (E. C. L. R. vol. 86). [BYLES, J.-The bankrupt law deals with beneficial interests only.] The question is, whether a set-off against the nominal plaintiff can be pleaded against the real plaintiff. At the time this action was commenced, the debt sued for was the property of Smith. [ERLE, C. J.-Isberg v. Bowden, 8 Exch. 852,† is expressly against you] That case scarcely raises the question presented here.

ERLE, C. J.-I am of opinion that the cases cited by Mr. Lloyd, of Wake v. Tinkler, 16 East 36, and Tucker v. Tucker, 4 B. & Ad. 745 (E. C. L. R. vol. 24), coupled with the case to which my Brother

Keating referred of Isberg v. Bowden, show that this is a bad replication. The plaintiff sues for a debt; the defendant pleads a set-off in respect of a judgment obtained by him against the plaintiff; and the *283] plaintiff replies, that, before the *judgment was recovered, he had assigned to one Smith the debt due to him from the defendant, and that the defendant had notice thereof. The cases adverted to distinctly negative this transposition of the legal rights of parties so as to defeat a set-off by reason of some equitable right in a third party. The replication is clearly bad.

WILLES, J.-I am of the same opinion.

BYLES, J.-I think it is quite shocking that the point should be raised again after the statute and the cases which have been decided upon it.

KEATING, J., concurred.

Judgment for the defendant.

WILLIAM FARRAND, Appellant; (a) GEORGE COOPER,

Respondent. April 25.

Steam-vessels plying between the river Itchen, at Southampton, and the Isle of Wight, are bound, under the Southampton Pier Act, 1 & 2 W. 4, c. i. s. 56, to call at the Royal Pier at Southampton when requested by five passengers to do so.

THIS was a case stated by justices under the 19 & 20 Vict. c. 43, to take the opinion of the Court as to whether or not steam-vessels going from a landing-place in the river Itchen, at Southampton, to Cowes, in the Isle of Wight, were, under the provisions of the Southampton Pier Act (50 G. 3, c. clxviii.), s. 56, bound to call at the Town Pier for the embarkation of passengers.

*284] *By the 43 G. 3, c. xxi., intituled "An Act for abolishing certain dues called petty customs, anchorage, and groundage, and for improving the port of the town of Southampton, for making a convenient dock for the security of ships, for extending the quays and wharfs, and making docks and piers in the harbour there, and for erecting warehouses for the safe custody of goods and merchandise, and for imposing certain duties for the above purposes," reciting that the port of the town of Southampton was of great antiquity, and was capable of being rendered more commodious than at present for carrying on trade, both foreign and coastwise, by the construction of a basin and wet docks and piers, and by the improvement of the then present quays and wharfs for the reception of and harbouring ships and vessels, and by erecting warehouses for the safe custody of goods and merchandise, whereby the said port and town of Southampton would be greatly benefited, and the navigation and commerce of the kingdom increased; and reciting that the mayor, bailiffs, and burgesses of the town and county of the town of Southampton had by virtue of several charters granted to

(a) The appellant was clerk to the commissioners for putting into execution an Act of William the Fourth, intituled "An Act for erecting and maintaining a pier and other works for the more conveniently landing and embarking passengers in the port of the town of Southampton," 1 & 2 W. 4, c. i.

them by His Majesty's progenitors, kings and queens of England, received and been entitled or claimed to be entitled to receive duties called petty customs upon the exportation and importation of all goods and merchandise out of and into the said port of Southampton, from the owner exporter, or importer of such goods and merchandise, and also certain other duties called anchorage and groundage, payable by all vessels coming within and not belonging to the said port, together with wharfage and craneage, from the owners and masters of all such vessels, which said rights, privileges, immunities, exemptions, and advantages, the said mayor, bailiffs, and bur gesses were willing to relinquish and give up upon a compensation *being made for the loss and diminution that would accrue to the said mayor, bailiffs, and burgesses by abolishing the same: [*285 But, forasmuch as a very considerable expense would be incurred by the making the said basin and docks and piers, and erecting the said warehouses, and preserving and maintaining the same when made, as well as the present quays; and it was reasonable that the sums necessary to defray the same should be paid by persons trading from and to the said port of the said town of Southampton; and as the danger ships are now exposed to for want of such advantages would be thereby in a great measure removed, it was enacted that the mayor, recorder, and common councilmen of the said town and county of Southampton and their successors in respect of such their offices together with certain persons named and their successors, to be elected, nominated, and appointed in manner thereinafter mentioned, should be and they were thereby appointed commissioners for putting the Act into execution, and should have and they had by that Act full power and authority to make a wet dock or basin with wharfs and sluices, and to erect a pier or piers, dock or docks, warehouse or warehouses, of such materials and in such manner as they should see fit, and to extend, alter, and repair the then present quays and wharfs, and erect warehouses and other works necessary for the improvement of the said harbour and port (and then and from thenceforth such of the quays and wharfs then made or built or repaired by the said Commissioners should be deemed and taken to be legal quays and wharfs accordingly), and also for the safe custody of goods and merchandise, and for the more convenient use of the same within the said port of the town and county of the town of Southampton, and should for that purpose have power and authority to purchase lands, tenements, and

hereditaments for the *use of the said piers, docks, basins, and [*286 wharfs, without incurring any of the penalties or forfeitures of the statute of Mortmain, and at any time or times to sell, dispose of, and convey any such lands, tenements, or hereditaments which should not be wanted for the purposes of the Act to any person or persons whomsoever; and the said Commissioners should have power and authority to place booms for marking the channel in the Southampton Water, from Calshot Castle up to the town of Southampton, and also up to Redbridge and Eling in the Southampton River, and up to Northam in the river Itchen; and that all acts, matters, and things thereby authorized or directed to be done by the said Commissioners might be done or executed by any five or more of them, and should

be as valid and effectual as if done and executed by all the said Commissioners, unless otherwise thereinafter particularly directed.

The 5th section enacted that the Commissioners should make bylaws. This was repealed by the 50 G. 3, c. clxviii., s. 11.

The 6th section enacted that no by-law to be made under the authority of the Act should in any way extend or be construed to extend to any ship or vessel so as to subject the owner or the master or other person having the command or charge thereof to any control or expense (except so far as should be necessary for the recovery of the boomage duties thereby granted) either at Chappel, Northam, Redbridge, Eling, or in the Hamble Water.

The 9th section enacted that the messuages, lands, tenements, and hereditaments to be purchased by virtue of the Act, and all buildings, erections, and other matters and things thereon and thereunto belonging, and also all basins or docks, cuts, quays, wharfs, works, warehouses, buildings, and requisite roads, ways, sluices, drains, *287] matters, and things which should be made, built, provided, or established by virtue or in pursuance of the Act, should be and the same were thereby vested in the said Commissioners; and they and their successors were thereby authorized and empowered to bring any action or actions and to prefer bills of indictment against any person or persons who should cut, damage, or injure, or cause to be cut, damaged, or injured, any of the works to be made, erected, established, amended, or repaired by virtue of that Act, or who should injure or destroy the same whilst doing, or impede the doing thereof, or should steal, purloin, or wrongfully take away stone, lead, iron, wood, bricks, or other materials and machines, engines, or utensils provided or to be provided from time to time, or used or intended to be used therein, or for any other purposes of the Act, or who should wilfully do or suffer or consent to anything whereby damage might accrue to the messuages, erections, and buildings to be purchased, or the works or machines to be made or erected, by virtue of the Act; and all the damages which should be so recovered by the said Commissioners by any suit, process, or action, after deducting the costs of suit, should be applied as thereinafter directed.

By section 13, the petty customs were to cease, and new rates, &c., to be raised: but this was repealed by s. 13 of the 50 G. 3, c. clxviii., and new rates granted.

By s. 15, it was enacted that nothing therein contained should extend or be construed to extend to charge with the said rates, dues, or duties, or any of them (except the boomage duties), any ship or vessel on account of her coming to or anchoring at 'Chappel, Northam, Redbridge, Eling, or Woodmill, except as to so much of the cargo of such ship or vessel as should be landed or shipped at or from the said *288] pier, dock, or *basin, or any legal quays at the said town of Southampton.

By section 16, no boomage duty was payable until booms were laid down.

Section 19 provided for the application of the moneys arising by the duties.

By section 21, tonnage was to be paid according to the certificate of registry.

By section 23, the rates were to be paid before vessels were entered at the custom-house.

By section 35, it was enacted that all vessels, hoys, boats, barges, lighters, or other craft coming within Calshot Castle, and navigating in the water called Southampton Water, and the rivers thereto belonging, as far as the tide flows therein, should, as to the payment of boomage dues, be deemed to be within the harbour of the said town of Southampton, in such and the same manner as if they had come to and used the pier, dock, or basin, and should be subject and were thereby declared to be liable to the same boomage, and the rules, bylaws, regulations, and payments on account thereof, as all other ships and vessels coming into the said pier, dock, or basin.

By section 37, provision was made for the appointment of a harbourmaster and dock-master.

By section 52, it was enacted that nothing in the Act contained should extend or be construed to extend to affect, prejudice, alter, abridge, or take away any rights, estates, powers, immunities, and advantages or privileges whatsoever belonging or appertaining to the mayor and corporation of the said town and county, or to any other person or persons whomsoever (except such as were thereby expressly taken away or altered); but that all such rights, estates, powers, and privileges should continue in full force and effect, and might be exercised and enjoyed in as full and ample a manner *to all intents and purposes as if the Act had not been made, anything therein contained to the contrary notwithstanding.

[*289

Section 53 provided for the recovery and application of penalties. The following is an extract from the schedule to the Act, of the rates, dues, and duties to be paid :—

"A tonnage duty on all British ships loading or unloading at the quays or in the road, 2d. per ton each voyage: Foreign ships double. "Colliers, coasters, and short traders allowed to compound at 1s. per ton per annum.

"Boomage duty, in lieu of harbour dues and of anchorage and groundage, to be paid by all ships coming within Calshot Castle, and not belonging to the port, videlicet:

Under 50 tons

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"Above 50 and under 100
"Above 100

"Foreign ships double."

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By an Act of Parliament made and passed in the 50th year of the reign of King George the 3d, intituled "An Act for altering and amending an Act made in the 43d year of his then present Majesty's reign for improving the port of the town of Southampton" (50 G. 3, c. clxviii.), reciting that an Act was passed in the 43d year of the reign of His then present Majesty, intituled, &c., and that great progress had been made in the execution of the works authorized by the said Act, and the improvements of the said port and harbour of Southampton were in a state of great forwardness; and the powers and provisions of the said Act had been found defective and insufficient for the purposes thereby intended; and that it was therefore expedient that the same should be altered, amended, and enlarged, and that the

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