defendant and that the plaintiffs acted in the supply on that belief. But, though we are all convinced the verdict was wrong, the question on this record is whether the summing up is erroneous in the points excepted to.

We think it is in two parts. In the first it is defective; and the defect is one which might mislead the jury, and we think probably did lead them to find the verdict which they did find. In the other part it is, we think, wrong.

Lord Campbell told the jury that "the defendant would not be liable to the plaintiffs' demand, merely as owner of the ship, nor by reason of this being registered as such owner; nor would he be liable merely by the orders being given to the plaintiffs by the registered master of the ship :" and so far the direction is perfectly accurate: but then comes an enumeration of the circumstances under which the defendant “ might be liable," which must be understood as meaning that, if the jury found that these circumstances all existed, they should find for the plaintiffs. We think that this enumeration is defective. The circumstances enumerated are: If the defendant "remained in possession of the ship and held himself out as owner, and if a person acted as master of the ship with his privity and consent, and the goods and work were supplied to and done upon the ship upon the credit of the owner, by the bonâ fide orders of the master, given with the privity of the owner, and if *445] the goods and *work were fit, necessary, and proper for the ship, under the circumstances in which she was placed, and fit and necessary for the purposes of the ship, at the time of the orders." Now we think that, though all these circumstances existed, yet it would not be enough to render the defendant liable, unless the person acted as the defendant's master of the ship with his privity and consent, and the goods and work were supplied to and done upon the ship, not merely 66 upon the credit of the owner, by the bonâ fide orders of the master given with the privity of the owner,' but as on a contract with the owner on orders given by the master as for him. Now, in this case, on the evidence it appears that the defendant did not, by word or deed, in any way hold out Thomson as his master; and therefore the defect in this part of the summing up is material, and would influence the verdict. After having detailed these circumstances as what would make defendant liable, Lord Campbell states the proposition in a general form, and desires the jury to consider "whether, upon the evidence upon both sides, they were of opinion that the defendant had authorized the goods and work to be supplied and done on his credit, and the goods and work had been supplied and done on his credit." Taking that as a detached part of the summing up, unaffected by what went before, that is unexceptionable; for, no doubt, if the jury disbelieved the parts of the case that made for the defendant, and drew the primâ facic inference from the ownership and other facts, there was evidence on which they might

find that Thomson was in fact master for the defendant; and, that being so, we cannot agree with the exceptions that there was no evidence to go to the jury.

Then follows another part of the summing up which *we think [*446 erroneous. Lord Campbell tells the jury that "Whether defendant had authorized the order was a question of fact for the jury." As I have already said, we think that right, and that there was evidence to leave to the jury on that question of fact. But then he adds that, "although the facts given in evidence for the defendant were believed, he was not conclusively entitled in point of law to a verdict." We think that objectionable; for, as there was only evidence of an actual authority, and no evidence of such a holding out of Thomson by the defendant as his agent, as to preclude the defendant from denying the agency, the real question for the jury was whether Thomson was in fact the defendant's agent; and, if the defendant's evidence was believed, he was not. The summing up proceeds: "that under the circumstances proved the defendant might be liable although he was residing in Liverpool, and the goods were supplied and the work was done in the port of London." On that we give no opinion. He then proceeds: "that there was evidence for the consideration of the jury that Thomson acted as master of the ship with the privity and concurrence of the defendant." As I have already said, we think there was no evidence that Thomson acted as the defendant's master of the ship: and here again. the summing up is defective. And there must be a new trial.

We have not entered upon the question whether it is within the scope of a master's general authority to bind the owner for substantial repairs done in London, when the owner resides in Liverpool. It is not to be assumed that we think that ruling right.

The rest of the Court concurred.

Venire de novo awarded.

*SOPHIA ELIZABETH Baroness WENMAN v. WILLIAM

MACKENZIE. June 19.

[*447

In an action for injuring the plaintiff's reversionary interest in a several fishery in an estuary of the sea, and in the soil of the bottom of the sea, both in the possession of F. as her tenant, issues were taken on plaintiff's right to the fishery and ownership of the soil. The controversy was, whether the soil belonged to plaintiff or to G. The plaintiff gave in evidence the proceedings in an action by F. against G. One count in that action was for injuring F.'s fishery by tearing up soil described as being the soil of the now plaintiff, and thereby destroying the fish. To this there was a plea of Not guilty. The amount of damages was referred; and the arbitrator awarded nominal damages. It was proved that the act complained of in that action was committed in a part of the same estuary, and that the soil there was claimed by the same title as the soil which was the subject of the present action, and that the defendant in the present action became tenant to G. subsequently to the award. The proceedings were admitted. and plaintiff had a verdict.

Held: that they were improperly admitted, the award not being evidence of reputation; and the proceedings not being admissible for the plaintiff, who was not a party or shown to be a privy to F., though the defendant was privy to G.

FIRST Count for injuring plaintiff's reversion in a close in the occu pation of William Fairman as her tenant, by cutting a trench in it; laying special damage thereby to a several fishery of plaintiff.

Second count: for injuring plaintiff's reversion in a separate and several fishery, in the possession of Fairman as her tenant, by digging the soil, muddying the water, and thereby injuring the fishery.

Third count. Trespass quare clausum fregit.

Pleas. 1. Not guilty. 2. To first count: That the close was not in possession of Fairman as plaintiff's tenant. 3. To first count: That the reversion in the close did not belong to plaintiff. 4. To second count: That the fishery was not in the possession of Fairman as tenant to plaintiff. 5. To second count: That the reversion in the fishery did not belong to plaintiff. 6. To third count: That the close was not plaintiff's. 7. To third count: That it was the close of Henry Plumptre Gipps, and leave and license from Gipps.

Issue was taken on these several pleas.

*On the trial, before Maule, J., at the Maidstone Spring *448] Assizes, it appeared that Lady Wenman was Lady of the Manor of Milton, in Kent, and claimed as such to be entitled to a several fishery in the æstuary called the Swale, which surrounds the Isle of Elmley there, and to be owner of the soil between high and low water mark in the Swale. Fairman, in the pleadings named, was lessee, under a lease made in 1845, of Lady Wenman's fishery and of her rights in the soil in a part of the Swale called the East Grounds. Mr. Gipps, in the pleadings named, was owner of the part of the Isle of Elmley abutting on the East Grounds. He claimed to be owner of the soil down to low water mark; Lady Wenman admitted his title only to high water mark; and he denied her title altogether. The defendant Mackenzie was tenant, under Gipps, of a portion of the Isle of Elmley. In 1853 defendant made a dock in his land above high water mark, and for the purpose of giving access to it cut a canal nearly to low water mark through a portion of the foreshore which was included in Lady Wenman's lease to Fairman, if it was Lady Wenman's soil. In making this cut, the mud was disturbed; and it injuriously affected the oysters in the fishery. For these acts the action was brought: but the action appeared to be instituted mainly with a view to try, as between Lady Wenman and Mr. Gipps, the right to the soil of the foreshore along the Isle of Elmley and to the several fishery there. The verdict passed for the plaintiff on the issues as to the first two counts. As the defendant obtained the rule after mentioned for a new trial only on the ground of the admission in evidence of one document, it is unnecessary, for the purposes of this report, to give the details of the action, beyond those necessary for *explaining the circumstances under which

*449]

the document was admitted.

The plaintiff's case consisted in showing that the manor had been of

ancient demesne, and was granted by King Charles the First to her ancestor, together with the appurtenances. In the grant, fisheries in the sea were expressly named. In order to show that the locus in quo was parcel of the manor, much evidence, showing acts of dominion, on the parts of the lessees of the manor under the Crown before the grant and of the ancestors of the plaintiff since the grant, was given. This it is unnecessary to specify, as this Court considered the whole legitimate evidence, and refused a rule Nisi for a new trial, except as to the admission in evidence of the documents immediately after mentioned.

Amongst other evidence, the plaintiff's counsel offered the pleadings in an action brought in the Queen's Bench in 1851, by Fairman, the tenant of the now plaintiff, against Gipps, the landlord of the now defendant. The declaration contained three counts. The first count, averring Fairman's possession of a fishery in the Swale, was for negligently tearing up the soil in the sea thereto adjoining, and thereby muddying the water and destroying the oysters in the fishery. The second count was: That plaintiff was possessed of a sole and several fishery, called the East Grounds, situate in a branch or arm of the sea, called the Swale River, on the south side of the Isle of Elmley, which said fishery the plaintiff had used and enjoyed, and then ought to have used and enjoyed, as of right, and still of right ought to use and enjoy, without such molestation or hindrance from or by the defendant as thereinafter mentioned. *And that plaintiff was also possessed of [*450 oysters, oyster brood, and oyster spawn then lying and being within the said fishery, and in and along the bed and bottom of the branch or arm of the sea aforesaid. Averment: "that, before and at the said several times of the committing of the said grievances hereinafter mentioned, one Sophia Elizabeth Baroness Wenman was seised in her demesne as of fee of and in the ground and soil of the bed, bottom, and shore of the said branch or arm of the sea, to wit, between high water mark and low water mark, near to the said fishery, oysters, oyster brood, and oyster spawn of the plaintiff. Yet the defendant, well knowing the premises, heretofore and before the commencement of this suit, and while the plaintiff was so possessed of the said fishery, oysters, oyster brood, and oyster spawn as aforesaid, and the said Sophia Elizabeth Baroness Wenman was so seised as aforesaid, to wit, on," &c., "without leave or license, and against the will of the said Sophia Elizabeth Baroness Wenman, so wrongfully and injuriously subverted and tore up the said ground and soil of and in which the said Sophia Elizabeth Baroness Wenman was so seised as aforesaid, and the stones, mud, and gravel then forming part of such ground and soil, and cut and dug divers cuttings, trenches, and canals, to wit," &c., "in and into the said lastmentioned ground and soil, and threw and kept and continued the same so cut and dug for a long space of time, to wit," &c., "and made and heaped up divers ridges and embankments, to wit, five," &c.,

"com

posed, to wit (amongst other things), of mud, stones, and gravel, in and upon the said last-mentioned ground and soil near to the said fishery, oysters, oyster brood, and oyster spawn of the plaintiff, and kept and continued the *same," &c., whereby mud was washed and thrown *451] into and upon the said fishery, oysters, oyster brood, and oyster spawn of the plaintiff, and destroyed them. Third count, for obstructing the navigation in the Swale. Plea: Not guilty.

These pleadings were tendered as evidence of an admission by Gipps. Objection was made that, for all that appeared on the declaration and plea, the judgment might have been in favour of the defendant. To meet this objection, an order of a Judge referring the question of damages to a barrister, and his award of a shilling damages on each count, were offered. It was shown that the action of Fairman v. Gipps was brought against Mr. Gipps for cutting a canal, similar to that complained of in the present action, in a part of the foreshore of the Swale close adjoining the East Grounds, and claimed by Lady Wenman by the same title as the East Grounds. It did not appear distinctly when Mackenzie, the present defendant, became tenant to Gipps, nor whether the action of Fairman v. Gipps was really Lady Wenman's action in the name of her tenant: but the Court in banc held that, the case not having been put on those grounds at Nisi Prius, when the facts could have been ascertained, the case must be treated on the assumption that the action was that of Fairman, and not of Lady Wenman in his name, and that Mackenzie, the now defendant, had acquired his lease subsequently, so as to claim under the estate then belonging to Gipps. The evidence was admitted; and the plaintiff had a verdict on all the issues to the two first counts.

Bramwell, in the ensuing Term, obtained a rule Nisi for a new trial on the ground of the improper *reception in evidence of the proceedings in the action of Fairman v. Gipps.

*452]

Channell, Serjt., Bovill, and Garth, now showed cause. (a)-One of the issues being as to the existence of a several fishery in the sea, which is a matter of public interest, evidence of reputation was admissible; Regina v. Inhabitants of Bedfordshire, 4 E. & B. 535 (E. C. L. R. vol. 82), Earl of Carnarvon v. Villebois, 13 M. & W. 313;† but it must be admitted that, according to the decision of this Court in Evans v. Rees, 10 A. & E. 151 (E. C. L. R. vol. 37), an award is not evidence of reputation in the same way that a verdict is. But in the present case the award was only put in to show that the action was at an end; what was relied on was the admission on the pleadings by Gipps that Lady Wenman owned the soil in the spot where he made the canal; as that was part of the same tract as the locus in quo, and claimed by the same title, ownership there by Lady Wenman is material evidence on the

(a) Before Coleridge, Wightman, Erle, and Crompton, Js. The argument was not finished on this day, and was resumed on June 23d before the same Judges.