the intention of the parties. It may be that by custom the engagement might have been determinable at the end of the voyage, viz. at Belize. But there was evidence of the continuance of the hiring beyond that period: and that would be for the jury. In Fairman v. Oakford (1), Pollock, C.B., says: "There is no inflexible rule that a general hiring is a hiring for a year; each particular case must depend on its own circumstances. From much experience of juries, I have come to the conclusion that usually the indefinite hiring of a clerk is not a hiring for a year (absolutely), but rather one determinable by three months' notice." Here the stipulation for a dismissal without notice is expressly confined to a dismissal abroad. LORD COLERIDGE, C.J. We entertain a strong opinion in this case: but, as the matter is one of great general importance, and one upon which there is no distinct authority, we will take time to consider. Cur. adv. vult. May 10. The judgment of the Court (Lord Coleridge, C.J., and Archibald and Lindley, JJ.,) was delivered by LORD COLERIDGE, C.J. This was an action tried before my Brother Lush at Liverpool in December, 1875, in which he directed a verdict to be entered for the defendant; and we have to determine whether that direction was correct. The plaintiff had been the master of the ship City Camp, under a written contract dated the 28th of March, 1875, from that day until the 10th of August, 1875, when he was dismissed, not for misconduct, but without notice, the defendant contending that, by the terms of the contract between the plaintiff and himself, the plaintiff was not entitled to any notice before dismissal. Other points arose in the case, but were not discussed before us. The action was brought for a dismissal wrongful in being with out notice; and the sole question argued was, whether, under the contract, the plaintiff was entitled to notice before dismissal, and on this single point my Brother Lush directed the verdict for the defendant. (1) 5 H. & N. 635, 636; 29 L. J. (Ex.) 459. 1876 CREEN v. WRIGHT. 1876 CREEN v. WRIGHT. The contract, so far as it is material to set it out, was as follows: "I hereby accept the command of the ship City Camp on the following terms: Salary to be at and after the rate of 1801. sterling per annum." Then followed certain other terms not material, and then," Should owners require captain to leave the ship abroad, his wages to cease on the day he is required to give up the command, and the owners have the option of paying or not paying his expenses travelling home. Wages to begin when captain joins the ship." "Francis Creen, Master, City Camp." It was contended for the plaintiff that, under this contract, he was entitled to a reasonable notice before dismissal, at any rate if dismissed in this country; and my Brother Lush held that he was not: but, upon consideration, we are of opinion that he was. The relation of the master of a ship to his employer, the shipowner, is not one in which, in the case of an indefinite hiring, the law has made, and there was no evidence of any custom making, the hiring a hiring for a year or for any other definite time, nor the notice by which the service is to be determined certain. As to the hiring, we adopt the language of Pollock, C.B., in delivering the judgment of the Court in Fairman v. Oakford (1): "There is no inflexible rule that an indefinite hiring is a hiring for a year. Each particular case must depend upon its own circumstances." As to the notice, we think the sound construction of the contract before us is, that, except in the single case provided for by its terms, there must be a reasonable notice before it can be put an end to by either party. The rule of construction must be the same for both parties to the contract. If the ship-owner may dismiss the master without notice on the very eve of a voyage, the master may leave the ship without notice at the same point of time. But the great inconvenience and heavy loss which might be, and indeed in most cases would be, inflicted on the ship-owner, without any remedy, by such a construction of the contract if acted on by the master, lead us to believe that such is not and could not be the meaning of the contract nor the intention of the parties to it. The loss and (1) 5 H. & N. 635; 29 L. J. (Ex.) 459. inconvenience to the master following upon the construction contended for, though not positively so great, may be relatively very great indeed: and this consideration points to the same conclusion. The provision that the master's wages shall cease instantly upon dismissal abroad, may well have been intended to prevent any question as to the ship-owner being liable to the whole expense of bringing the master back to the United Kingdom; and does not appear to us to permit an argument for construing the contract so as to enable either party to put an end to it at any time without notice of any kind. Indeed, upon the construction of the contract contended for by the plaintiff, and if no notice before putting an end to it was required at any time on the part of either master or ship-owner, it is not easy to assign a reason for the insertion of this particular provision into the contract. Nor was any satisfactory reason offered to us why the rule Expressio unius est exclusio alterius" should not apply to it. We think, therefore, that, under his contract, as the master could not, except under very unusual circumstances, be dismissed during the continuance of a voyage and while the vessel was at sea, so he was entitled to some notice, and that is to reasonable notice, before dismissal in this country. There is some authority for saying that, as a proposition of general law, reasonable notice is to be implied as a term of such a contract of hiring as this. Sir John Byles so laid down the law at nisi prius in the case of Hiscox v. Batchelor (1); and the case of Fairman v. Oakford (2), already referred to, seems, if the facts of it be carefully considered, to be an authority to the same effect. For, in the absence of stipulation for any notice, a month's notice was held reasonable to determine an indefinite hiring of a clerk, on the ground that the same clerk had accepted such a notice as sufficient to determine a former indefinite hiring also without stipulation for notice of any kind. It is nowhere suggested that the absence of stipulation made no notice necessary in either of the hirings, which would have been a short and simple ground, if a sound one, for upholding the verdict in that case. But, without intending to throw any doubt whatever upon these cases, we decide the one before us upon its own circum(1) 15 L. T. 543. (2) 5 H. & N. 635; 29 L. J. (Ex.) 459. 1876 CREEN v. WRIGHT. 1876 CREEN v. WRIGHT. May 5. stances, and upon considerations especially applicable to the contract on which the dispute arose. And we think that the order must be absolute for a new trial. Order absolute. Solicitors for plaintiff: Evans & Lockett, Liverpool. Solicitors for defendant: Gregory, Rowcliffes, & Co., for Hull, Stone, & Fletcher, Liverpool. MATHER, APPELLANT; BROWN, RESPONDENT. Municipal Corporations Act (6 & 7 Wm. 4, c. 76), s. 142-Municipal Elections In a nomination-paper at an election for town-councillors of a borough under the Municipal Elections Act, 1875, the name of a candidate, which was Robert Vicars Mather, was inserted thus,-"Robert V. Mather:"— Held, not such a statement of "the surname and other names of the persons nominated" as to satisfy the requirements of 's. 1 of the Act and the form given in the 2nd schedule; and that the inaccuracy was not cured by s. 142 of 6 & 7 Wm. 4, c. 76. THIS was a petition presented by Robert Vicars Mather to set aside the decision given on the 23rd of October, 1875, by Walter Smith, one of the respondents, the mayor of the town of Southport, in his capacity of returning officer of that town, whereby the said Walter Smith allowed an objection to the nomination-paper of the petitioner, in consequence of which the petitioner was excluded from the election of town-councillors held in the town of Southport for the Talbot Ward, on the 1st of November, 1875, and the two other respondents Brown and Witham, were declared duly elected and returned. The facts were stated in a special case for the opinion of the Court, as follows: 1. The borough of Southport, in the county of Lancaster, is divided into wards, one of which wards is called the Talbot Ward. The Talbot Ward is represented in the council of the borough by six councillors, two of whom retire annually, and two are elected to fill the vacancies on the 1st of November in each year, and remain in office for the space of three years. 2. On the 22nd of October, 1875, the petitioner was nominated as a candidate at the forthcoming election of two town-councillors for the Talbot Ward in the town of Southport, to be holden on the 1st of November, 1875, he being duly qualified in that behalf. 3. The petitioner was on the burgess-roll for the time being then in force for the Craven Ward of the borough, and on such burgessroll was described as Mather, Robert V., House, Chapel Street; and there was no other person of the surname of Mather residing in Chapel Street, on the said burgess-roll. 4. There were only three persons of the surname of Mather other than the petitioner on the burgess-roll for the time being then in force for the borough, two of whom were females, and the other described as Mather, Richard, House, 28, Sussex Road, and he is not an hotel proprietor. 5. The above-named Charles Henry Brown and Joseph Witham and one Jean Paul Denssen were also nominated as candidates at the said election for the said ward. 6. The nomination-paper of the petitioner was as follows: 1876 MATHER V. BROWN. The same was duly signed by a proposer, a seconder, and eight assenting burgesses duly qualified in that behalf, and was duly handed before five o'clock to the town-clerk by the seconder of the petitioner seven days at least before the day of the election, pursuant to s. 1, subs. 2, of the Municipal Elections Act, 1875, 38 & 39 Vict. c. 40. The town-clerk of the borough sent notice of such nomination to the petitioner pursuant to s. 1, subs. 3, of the Municipal Elections Act, 1875, 38 & 39 Vict. c. 40. The petitioner then resided at Chapel Street, and had done so for some years, and was and is an hotel proprietor. 7. On the 23rd of October, 1875, the above-named Walter Smith, being the mayor and returning-officer of the borough, attended between the hours of 2 and 4 in the afternoon at the town-hall of the borough to decide on the validity of objections which might be made to the nomination-papers of the candidates. VOL. I. 2 U 3 |