S.C. 1902. PEARCE V. HOLMES. entitled to it under an existing appointment, or whether he is entitled to it by reason of no appointment at all having been previously made. The latter case, Sweetapple v. Horlock(1), decides that the assignment does not pass an interest created by the subsequent exercise of the power, even although the quantum of the interest so created is the same as that to which the assignor would have been entitled in default of appointment. Here the quantum of interest is different. That brings the present case within the authority of In re Vizard's Trusts(2). Looking, however, at the words of Mrs. Pearce's settlement, it is plain that they disclose no intention to assign anything but the determinable interest she then had by virtue of the deed poll of 1875. That interest was expressly stated to be subject to the power of revocation contained in the deed poll. The settlement therefore contemplated that the appointment of the £10,000 made by the deed of 1875 might be revoked, and that if it was revoked the trustees would take nothing. There is nothing in the settlement to suggest that a new or substituted interest created by any future appointment is to pass to the trustees, or that, if the previous appointment were revoked, and no fresh appointment made, Mrs. Pearce's interest in the fund in default of appointment was to pass. a fact, the appointment contained in the deed of 1875 was by the deed of 1894 expressly revoked, determined, and made void. The deed of 1894 created a different interest-different in title and different in its quantum and incidents. The interest created by the former title was expressly extinguished, and ceased to exist. If, therefore, the principle of construction set forth in Smith v. Osborne (3) be applied to the present case, I am of opinion that Mrs. Pearce's settlement did not assign her present interest in the fund or in any part of it. It was contended that on equitable grounds the trustees were, at any rate, entitled to as much of the appointed fund as Mrs. Pearce would have been entitled to under the deed of 1875. The doctrine of the Court of Chancery, as stated by the Lord Chancellor in Smith v. Osborne(3), is "that if a man contracts to convey, or to mortgage, or to settle an estate, and he has "not at the time of his contract a title to the estate, but he "afterwards acquires such a title as enables him to perform "his contract, he shall be bound to do so." But, as the Lord Chancellor points out, whether the principle is applicable to any particular case depends on the question, what is the true construction of the contract? If Mrs. Pearce had bound herself to bring into settlement so much of the fund as she was then entitled to under the appointment made by the deed of 1875, when acquired by any means whatsoever, and although the appointment might be subsequently revoked, the doctrine would apply. But, if the meaning of a contract is to be determined by its words, that was not her contract. I think, therefore, that Mrs. Pearce is absolutely entitled to the share appointed to her. Solicitor for the trustees of the settlement: Allan Holmes (Dunedin). Solicitors for Mrs. Pearce: Bell, Gully, Bell, & Myers (Wellington). Solicitors for Mr. Pearce and the infant children: Bathgate & Woodhouse (Dunedin). S.C. 1902. PEARCE บ. HOLMES. NORTHERN STEAMSHIP COMPANY (LIMITED) AND OTHERS v. FLEMING. Negligence-Damages-Landing of Cattle-Trespass and Injury by Cattle excited by Mode of Landing-Duties and Responsibilities of Shipowner, Owner of Cattle, and Consignee-Remotenèss. Certain cattle, proved to have been previously quiet and tame, were shipped by the owner, P., consigned to S. On arrival at the port of destination the cattle, at the direction of S., were slung overboard and allowed to swim ashore, instead of being landed on the wharf. One of them, a bullock, rushed along the foreshore for some distance in an excited state, then, turning inland, broke into the plaintiff's garden and knocked her down, injuring her. She brought an action in the Magistrate's Court, in which the shipowners, the owner of the trespassing animal, and the consignee were all joined as defendants. The Magistrate gave judgment against the defendants for £50 damages, and costs. Held (reversing the decision of the Magistrate), That, the cattle being landed in the manner required by the consignee, the shipowners were not liable; that, the bullock having been known to have been previously quiet and tame, the owner of the cattle was not liable; and that, the consignee having no knowledge or reason to believe that this mode of landing the cattle would render them dangerous, there was no negligence on his part. THESE were three separate appeals from a decision of J. M. Roberts, Esq., S.M., in an action brought by Mrs. E. A. Fleming, at Tauranga, against the Northern Steamship Company S.C. IN BANCO. 1902. August 6, 7; September 24. CONOLI Y, J. S.C. 1992. (Limited), William Patterson, and Robert Seddon, in which the plaintiff claimed to recover £50 damages for injuries susNORTHERN tained from an attack by a bullock, the property of Patterson, STEAMSHIP consigned to Seddon, and conveyed to Tauranga in the defendant company's steamer "Waitangi." COMPANY FLEMING. 66 The facts were that on the 20th of November, 1901, certain cattle, the property of Patterson, and including a roan bullock, were shipped by Patterson's manager, at Motiti Island, for conveyance to Tauranga on the s.s. Waitangi." The animals were consigned to Seddon, to be received by him at Tauranga. Seddon himself proceeded to Tauranga by the steamer, and on her arrival there the master of the vessel, at his request, slung the cattle overboard, and they swam ashore. The bullock in question became excited and unmanageable, and, breaking from control, rushed along the foreshore for a distance of about half a mile, and then, turning into the Township of Tauranga, ultimately leapt over into plaintiff's garden and knocked her down. Either from the contact with the animal or from the fall the plaintiff was considerably bruised, and her system sustained a severe shock. The action in the Magistrate's Court was heard on the 6th and 7th of May, 1902, and on the 20th of May the Magistrate gave judgment for the plaintiff against all the defendants, and assessed the damages at £50. The defendants appealed on the grounds, inter alia, that the facts as found by the Magistrate did not support the judg ment, and that there was no evidence of negligence. In each appeal there was a separate case stated, agreed to by both parties, but there was considerable conflict between the several statements of facts. Campbell, for the Northern Steamship Company: The appellants are common carriers, and were therefore bound to take the cattle to Tauranga on being required to do so. Their duty was to deliver the animals to the consignee on his demanding them.. The rule is that as soon as the freight is clear of the ship's tackle the liability of the shipowner ceases. The cattle were to be delivered to Seddon, the consignee, and by his instructions they were slung into the water. Therefore the company completed its contract, and its liability ceased: Petersen v. Freebody(1); Gordon v. The Western Railway Company(2). It was not the duty of the company to see that sufficient means were at hand to receive and S.C. 1902. COMPANY บ. FLEMING. control the cattle: Daniel v. The Metropolitan Railway Company(1). There is nothing in the case as stated, nor in the findings of the Magistrate, showing negligence on the part of NORTHERN the company, for his findings do not necessarily involve the STEAMSHIP inclusion of the company. According to the Magistrate a dangerous act was done, and the defendants were therefore liable for the consequences; but this is not law. It is not sufficient to show that damage actually follows an act, and then to assume that the act itself was necessarily dangerous. It must be shown that the damage might reasonably have been foreseen by a prudent man. The damages claimed are too remote. They were not the natural and reasonable consequence of putting the cattle into the water, which was all that the company did. The damage arose through there not being a sufficient number of men on shore to receive and control the animals. In order to render the company liable it would be necessary to show either that it was a matter of common knowledge that landing cattle in this way is a dangerous act, or that the master of the vessel knew it to be dangerous. There was no proof of such knowledge, nor was there any proof that any of the cattle were known to be vicious or dangerous. The company therefore cannot be held liable: Welfare v. The London and Brighton Railway Company(2); The Metropolitan Railway Company v. Jackson(3). Reed, for the respondent: The contract with the Northern Steamship Company was that the cattle were to be landed at Tauranga; but the company did not land them at all. The animals were simply slung into the water, and allowed to land in the best way they could on the foreshore of a populous township. This was an act manifestly dangerous, and a grave dereliction of duty to the public. What has to be decided is whether there was negligence. The Magistrate has found that there was negligence, and the question of scienter is irrelevant. The real question is, was there a failure of duty to the public? Encyclopædia of Laws of England (4). There was a breach of duty in slinging the cattle into the water in the way it was done. The Magistrate has found that, and the company is liable even in the absence of scienter: Lee v. Riley(5). (1) L.R. 5 HL. 45. (2) L.R. 4 Q.B. 693. (3) 3 App. Cas. 193. (4) 1st ed. Vol. x. 83, 84. S.C. 1902. NORTHERN COMPANY V. [CONOLLY, J.-I cannot see that the case applies. Where was the negligence of the company?] The Magistrate has found negligence, and that injury reSTEAMSHIP sulted from the negligence. It was a negligent and dangerous way of landing cattle, and the company is responsible for the FLEMING. injury consequent on the trespass: Ellis v. Loftus Iron Company(1). The trespass arose from the manner in which the cattle were landed, and not only is the owner of the cattle liable for the tort, but also the persons concerned in the tort : Encyclopedia of Laws of England (2); McLeod v. Batchelor(3). McGregor, for the appellant Patterson : Patterson had no knowledge that the cattle were wild or dangerous, and, as a matter of fact, the evidence disclosed that they were not wild. This being so, he is not liable for the injury done by the bullock, notwithstanding the fact that he was the owner of the animal: Cox v. Burbidge(4); Fletcher v. Rylands(5); Smith v. Cook(6); Fleeming v. Orr(7); Stiles v. Cardiff Steam Navigation Company(8). Reed, for the respondent: There are two questions to be decided in this case: first, was there negligence; and, second, was Patterson liable for the acts of Seddon? As to the first, negligence has been found; and as to the second, Seddon was Patterson's agent to receive and land the cattle, and the principal is liable for the acts done by his agent in performance of the work assigned to him. In the cases cited for the appellant ferocious acts were committed by animals, and the owners were exonerated because scienter was not proved. But in those cases there was no trespass on private property, and that fact distinguishes them from the present case. Where there is trespass on private property the owner of the trespassing animal is liable for the damage done, and the tendency of the Courts is to extend the range of natural consequences: Pollock on Torts(9). The Magistrate has found that landing cattle in the manner adopted is a dangerous practice, and tends to make them wild and unmanageable. This brings the case within Lee v. Riley(10) and Ellis v. Loftus Iron Company(1). In the latter case the mere fact of trespass was held sufficient to warrant judgment, without (1) L.R. 10 C.P. 10. (2) 1st ed. Vol. x. 386. (6) 1 Q.B.D. 79, 82. (10) 18 C.B. N.S. 722. |