ableness of the captain's conduct was left to the jury, and the only possible straw, if I may use the expression, which can now be caught at in support of the rule upon this last point, is the possible meaning of a collateral contingent observation in the course of the learned judge's direction to the jury.

Lord COLERIDGE, C.J.-I have very little to add. I agree that the sixth and seventh answers would have been against evidence, if given otherwise. I agree also in the view which my brother Brett has taken of the meaning of the decision in Jackson v. Union Marine Insurance Company (ubi sup.) It is a most authoritative expression of opinion, for my brother Brett took part in that judgment himself. As to the misdirection, I charged the jury without being aware of Barker v. McAndrew (ubi sup.) The contention as to "forthwith" I do not quite see the importance of. I had, it was admitted, correctly explained the term to mean with all necessary and reasonable dispatch, and the jury found that the vessel did in fact sail "forthwith." Upon the last point, I can only say that before giving the direction complained of, I had referred to Avery v. Bowden and Reed v. Hoskins (6 E. & B. 953; 3 Jur. N. S., 238; 26 L. J. 3, Q. B.); and also to Xenos v. Danube Railway Company (11 C. B., N. S., 152; 13 ib. 825); and in my direction was attempting to follow the law as well as I could estimate it from those cases.

Rule discharged. Attorney for the plaintiffs, W. A. Crump. Attorneys for the defendants, Druce, Sons, and Jackson.

COURT OF EXCHEQUER. Reported by T. W. SAUNDERS and H. LEIGH, Esqrs., Barristers-at-Law.

Wednesday, April 22, 1874.

GORRIS AND ANOTHER v. Scott.

Statutory duty-Penalties for breach of-Breach of duty-Special damage to plaintiff-Action forObject and intention of statute· Contagious Diseases (Animals) Act 1869 (32 & 33 Vict. c. 70), 88. 75, 103, 106-Order in council-Transit of animals by sea-Regulations as to violation of by shipowner-Action by owner of animals. The Contagious Diseases (Animals) Act 1869 (32 & 33 Vict. c. 70), s. 75, empowers the Privy Council, from time to time, to make such orders as they think expedient for, inter alia, "protecting animals brought by sea to ports in Great Britain, from unnecessary suffering during the passage, and on landing. In pursuance of such power, the Privy Council, on the 20th Dec. 1871, made an order (The Animals Order of 1871), that "with respect to places used for animals on board vessels, the following regulations shall have effect: First. Every such place shall be divided into pens by substantial divisions. Secondly. Each pen shall not exceed 9ft. in breadth, or 15ft. in length. Thirdly. The floor of each pen shall have proper battens or other footholds thereon." By sect. 103 a penalty is imposed on any person acting in contravention of, or guilty of any offence against, the Act, or any order or regulation made by the Privy Council, not exceeding 201. for every such offence.

The plaintiffs shipped a quantity of sheep on board a vessel of the defendant, for transit from Ham

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burgh to Newcastle, and in consequence of the defendant failing to provide proper pens and footholds on board the vessel, as directed by the above order, a large number of the sheep were washed overboard in a gale, during the passage, and were drowned; and in an action by the plaintiffs against the defendant to recover damages by reason of his noncompliance with the statutory duty, it was

Held on demurrer, by the Court of Exchequer (Kelly, C.B., and Pigott, Pollock, and Amphlett, BB.), that, as the object of the statute and the Order in Council was, not to benefit the owners of animals by preventing the animals from being drowned, but to prevent the introduction and spreading of contagious diseases amongst cattle in this country, the plaintiffs, although they had sustained damage which would not have occurred if the defendants had performed their statutory duty, could not sue the defendant for the recovery of such damage, and that the action was not maintainable.

Couch v. Steel (3 E. & B. 402; 23 L. J. 125, Q. B.); Stevens v. Jeacocke and others (11 Q. B. 731; 17 L. J. 163, Q. B.); and Atkinson v. The Newcastle and Gateshead Waterworks Company (L. Rep. 6 Ex. 404); discussed and distinguished.

THE plaintiffs in this action were cattle dealers at Hamburgh and the defendant was the owner of the screw steam ship Hastings, which, on the 6th March 1873, was lying at Hamburgh. On that day the plaintiffs shipped on board the Hastings a number of sheep for delivery at Newcastle, under the following bill of lading.

Shipped in good order and well conditioned by Gorris in and upon the good steamship Hastings, Capt. Douglas, now lying in the port of Hamburgh, and bound for Newcastle, 100 sheep, being marked and numbered as in the margin, and to be delivered in the like good order and condition at the said port of Newcastle, all and every dangers and accidents of the sea, fire, machinery, boilers, steam, and steam navigation of what nature or kind soever excepted, unto Thomas Maugham, of Newcastle, or assigns, he or they paying freight for the same 1s. sterling per head. In witness, &c.

On deck at shipper's risk. Not answerable for washing or throwing overboard. Free of mortality. To be forwarded at shipper's risk and expense, &c.

Hamburgh, 6th March 1873.

The Contagious Diseases (Animals) Act 1869 (32 & 33 Vict. c. 70), which is an Act to consolidate, amend, and make perpetual the Acts for preventing the introduction or spreading of contagious or infectious diseases among cattle in Great Britain, enacts (sect. 75) that "The Privy Council may from time to time make such orders as they think expedient for all or any of (inter alia) the following purposes (1) For insuring for animals brought by sea to ports in Great Britain a proper supply of food and water during the passage and on landing. (2.) For protecting such animals from unnecessary suffering during the passage and on landing,"

In pursuance of the powers conferred on them by that section, the Privy Council, on the 20th Dec. 1871, made an order, cited as "The Animals Order of 1871," which contained the following, amongst other, regulations:

TRANSIT OF ANIMALS BY SEA.-With respect to places used for animals on board vessels, the following regulations shall have effect:

(1) Every such place shall be divided into pens by substantial divisions.

(2) Each pen shall not exceed 9ft. in breadth or 15ft. in length.

(3) The floor of each pen shall have proper battens or other footholds thereon.

By sect. 103 a penalty not exceeding £20 is imposed upon any person acting in contravention of or guilty of any offence against the Act or any order or regulation made by the Privy Council or a local authority, in pursuance thereof, for every such offence; and where such offence is committed with respect to more than four animals, a penalty not exceeding £5 for each animal may be imposed instead of 201., and by sect. 106 one half of the penalty is to be paid to the person who sues or proceeds for the same.

The defendant's vessel was not fitted with proper pens nor provided with proper battens or footholds, as prescribed by the above-mentioned order of council, and in consequence thereof a large number of the plaintiffs' sheep were washed overboard by the sea in a gale which the vessel encountered on the passage from Hamburgh to Newcastle, and were drowned. Thereupon the plaintiffs commenced an action against the defendant, as owner of the said vessel, to recover damages from him for the loss of their sheep through his breach of the statutory duty in that respect imposed upon him by the Act.

By the first count of their declaration they complained that heretofore, and after the making and passing of the Contagious Diseases (Animals) Act, 1869, The Lords and others of Her Majesty's Hon. Privy Council, under and in exercise of the powers and authority in them by the said Act in that behalf vested, duly and within the true intent and meaning of the said Act, made a certain order therein, called 'The Animals Order of 1871,' with reference to animals brought by sea to ports in Great Britain, and to the places used and occupied by such animals on board any vessel in which the same should be so brought to such ports, and thereby, amongst other items, ordered and made the following regulations, that is to say :-' 1. That every such place should be divided into pens by substantial divisions; and secondly that each such pen should not exceed nine feet in breadth and fifteen feet in length.' And the plaintiffs further say that afterwards, and after the making and taking effect of the said order, and whilst the same continued and was in full force and effect, the plaintiffs delivered in and on board of a certain vessel called the Hastings, to the defendant, as and then being the owner of the said vessel, certain sheep of the plaintiffs, to be carried and conveyed by the defendant, for reward to him, in that behalf, in and on board the said vessel by sea from the port of Hamburgh to a certain port in Great Britain, called (to wit), to the port of Newcastle, and there delivered for the plaintiffs, and the defendant then, and as being such owner as aforesaid, took and received, and started on the said voyage, with the said sheep in and on board the said vessel, for the purposes and on the terms aforesaid." Averments. That the said order and regulations respectively remained and continued in full force and effect before and at and from the time of the said delivery to and receipt by the defendant of the said sheep as aforesaid, up to and until and at the time of the termination of the said voyage; and that all conditions were performed and fulfilled, and all things happened and were done, and all times elapsed necessary to entitle the

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plaintiffs to maintain this action in respect of the claim in this count made, yet the place in and on board the said vessel, which was used and occupied by the said sheep during the said voyage was not during the said voyage, or any part thereof, divided into pens by substantial or any other divisions, and the defendant wholly neglected and omitted to divide the said place, or to cause the said place to be divided during the said voyage or any part therof; and by reason thereof divers of the said sheep were during the said voyage, washed and swept away by the sea from and off the said ship, and were drowned and wholly lost to the plaintiffs.

The second count of the declaration was precisely the same as the first, except that in setting out the "Animals Order of 1871," it added besides the two regulations set forth in the said count, the third regulation contained in such order as follows: "Thirdly, that the floor of each such pen should have proper battens or footholds thereon," and they assigned as a breach or neglect of duty on the defendant's part, that "the floor of the place in and on board the said vessel, which was used and occupied by the said sheep during the said voyage, had not during the said voyage or any part thereof, proper or any battens or any other footholds thereon, as required in and by the said order, so made under and in pursuance of the said statute, and by reason thereof divers of the said sheep were during the said voyage washed and swept away by the sea from off the said ship, and were drowned and wholly lost to the plaintiffs.

The third count charged that the plaintiffs caused to be delivered to the defendant, and the defendant received from the plaintiffs, certain goods, that is to say, certain sheep, to be by him shipped on board of the ship Hastings, and safely and securely carried therein from Hamburgh to Newcastle, and there, for freight payable by the plaintiffs to the defendant in that behalf, delivered for the plaintiffs, all and every dangers and accidents of the seas, of fire, machinery, boilers, steam, and of steam navigation of what nature or kind soever excepted; and the defendant was not prevented from so shipping, carrying, or delivering the said goods by any of the perils or casualties aforesaid. And all conditions, things, and times, were fulfilled, &c., necessary to entitle the plaintiffs to have the said goods safely and securely carried and delivered by the defendant as aforesaid; yet the defendant did not, nor would safely and securely carry and deliver the said goods as aforesaid, and the same were during the said voyage lost to the plaintiffs.

The defendant, amongst other things, pleaded thirdly for a third plea to the first and second counts, that the said sheep were delivered in and on board the said vessel to the defendant, and were received by the defendant to be carried, as in the counts mentioned, on the said voyage, upon and subject to the terms following, that is to say, that the said sheep should be delivered in like good order and condition to the order and condition in which they were shipped, all and every the dangers and accidents of the seas, of fire, machinery, boilers, steam and of steam navigation, of what nature or kind soever, excepted, and that the said sheep should be carried on deck of the said ship at the plaintiffs' risk, and that the defendant should not, be answerable for washing, or throwing overboard, or for the death of any of the said sheep on board

the said vessel; fourthly,by his fourth plea to the said first and second counts the defendant repeated the several allegations in the third plea contained, and in addition thereto said that the said sheep were washed and swept away, as in these counts mentioned, by dangers and accidents of the seas, and steam navigation, within the true intent and meaning of the said terms, and not otherwise; fifthly, by his fifth plea to the same counts, the defendant repeated the third plea, and in addition thereto said that the said sheep were respectively necessarily. and properly thrown overboard, or died on board the said vessel, within the true intent and meaning of the said terms, and that the loss complained of arose and was caused wholly by such throwing overboard and death. Twelfthly. By his twelfth plea, for defence on equitable grounds, the defendant said that the said sheep were delivered on board the said ship at a port beyond the seas, that is to say Hamburgh, and that the defendant, when he agreed to accept and receive on board the said vessel the cargo hereinafter mentioned, was in this country, and that the defendant was induced to receive the said cargo on board the said vessel by a statement and allegation then made by the plaintiffs to the defendant in this country, that the plaintiffs were about to deliver a general cargo only, and not sheep or animals, on board the said ship; and the defendant accordingly, at the plaintiff's request, by telegram, ordered the said master to receive the said cargo, and the defendant, by the said master, as his agent in that behalf, received the same accordingly, on the faith and on the terms that the said cargo consisted of a general cargo only, and not of sheep or animals; and that the plaintiffs, in violation of the said terms, and contrary to the said statement, and without the personal knowledge of the defendant, delivered the said sheep and not a general cargo, to the said master, and that the loss and matters complained of arose wholly from the said violating the said terms by the plaintiffs, and by their delivering the said sheep to the said master without the knowledge or consent of the defendant.

Demurrer and joinder in demurrer to the first and second counts of the declaration, one ground of demurrer being that the breach of the said regulations only render the defendant liable to the penalty imposed by the Act.

Replication secondly to the twelfth plea, that the said sheep so delivered to the said master as in the said twelfth plea mentioned, were accepted and received by him in and on board the said vessel, with his full assent and concurrence, as part of the said cargo, and with full knowledge of all and singular the premises in the said twelfth plea mentioned.

Demurrers and joinder in demurrers to the third, fourth, fifth, and twelfth pleas respectively, the grounds of demurrer respectively being-as to the third plea, that the matter therein alleged affords no answer to the breaches of duty on the defendant's part in the first and second counts respectively mentioned, which are respectively by the said plea admitted to have been the cause of the sheep being washed overboard. As to the fourth plea that the matter therein alleged affords no answer to the said breaches, there being no allegation in the plea of a waiver by the plaintiff's of the defendant's performance of the duties in such counts mentioned. As to the fifth plea, that the matter therein alleged affords no answer to

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the said breaches, it being consistent with the allegations in the plea that the sheep were so necessarily and properly thrown overboard and died, as therein alleged, by reason and in consequence of such breach of duty respectively. And as to the twelfth plea, that is perfectly consistent with its allegations that the master of the vessel was, at the time when he received the sheep on board, fully aware of the arrangement between the plaintiffs and the defendant, and consented (which he had a general power to do) to vary and alter the terms of such arrangement.

Rejoinder: Demurrer and joinder in demurrer to the plaintiff's second replication to the twelfth plea, a ground of demurrer being that the concurrence of the master stated in the replication is wholly immaterial.

The points of argument on the part of the plaintiffs: As to the first and second counts-First, that the said counts respectively are good, and show on the face of them respectively that the defendant has, to the damage of the plaintiffs, failed to perform a statutory duty arising under and by virtue of an order in council, made under and in pursuance of sect. 75 of the Contagious Diseases (Animals) Act 1869, which was thereby imposed on the defendant for the benefit of the plaintiffs, as and being the owner of the sheep in the said first and second counts respectively mentioned, and alleged therein respectively to have brought by sea in the defendant's ship to a port in Great Britain; secondly that the provisions of the said section do not actually impose the penalty therein referred to for offences against any order in council, made under its provisions, but merely authorise the Privy Council to impose penalties for such offences, and that it does not appear upon the said pleadings that any penalty was ever actually imposed by the order referred to in the first and second counts respectively; thirdly, that, assuming that any such penalty had been in fact imposed by the said order in council, it would nevertheless be deemed and considered to have been so imposed for the purpose of prevention accordingly, and could not take away the plaintiffs' right to compensation for the damage which they have actually sustained in consequence of the neglect on the defendant's part to comply with the order in council mentioned and referred to in the said first and second counts respectively; fourthly, that independently of the said statutory declaration in the said first and second counts respectively mentioned, these counts respectively show that the defendant omitted to take such necessary and reasonable precaution for the protection of the sheep as he was bound so to do as a carrier for hire of the said sheep.

With regerd to the third, fourth, and fifth pleas -(fifthly) that the terms of the said alleged contract, mentioned in the said third, fourth, and fifth pleas respectively, did not (in the absence of any express agreement to that effect), exempt or excuse the defendant from performing the statutory duty imposed upon him, as in the said first and second counts respectively mentioned, and would, in the absence of such express agreement, be deemed to have been made and entered into, subject to such statutory duty; and that it is consistent with the allegations contained in the said third, fourth, and fifth pleas respectively, that the said damage sustained by the plaintiffs, as in these counts respectively mentioned, was primarily occasioned, by reason and in

consequence of the neglect of the defendant to perform the said statutory duties which were referred to above.

With regard to the twelfth plea-(sixthly) that the matter contained in the said twelfth plea affords no answer to the claim made in the declaration, and that it is perfectly consistent with the allegations contained in that plea, that the master of the said vessel was, when he received the said sheep on board, fully aware of the arrangement alleged in the said twelfth plea to have been made between the plaintiffs and the defendant, and that he, at the same time when he received the said sheep, consented, as he had power to do without any express or direct authority from the defendant in that behalf, to vary and alter the terms of such arrangement by accepting the said sheep in lieu of the said general cargo.

With regard to the second replication, to the twelfth plea. That the master knowing, as he is admitted to have done, of the original arrangements with the plaintiffs and the defendant, had full power, without any express or direct authority from the defendant in that behalf, to alter the terms of such arrangement by accepting the sheep in lieu of the said general cargo.

The defendants' points of argument.-First, that the order of council mentioned in the first and second counts of the declaration, and the 75th section of the Contagious Diseases (Animals) Act 1869, under which they were made, were intended solely for the protection of the "animals," and for the prevention of contagious diseases, and not for the benefit of the owners of animals, and that no action lies for the breach of order; secondly, that the only remedy for the breach of the said order is by proceeding for the penalties inposed by the said Act in manner therein pointed out; thirdly, that assuming that an action would lie in respect of the matters declared on in the first and second counts, the defendant is protected by the terms of the bill of lading as pleaded in the third, fourth, and fifth pleas; fourthly, in respect to the fifth plea, that that plea is sufficient without any allegation negativing the supposition that the sheep were thrown overboard in consequence of the supposed breach of duty, which should have been replied or new assigned if the plaintiffs rely thereon; fifthly, that the twelfth plea is good in substance; sixthly, that the knowledge and consent of the master as stated in the second replication to the twelfth plea is immaterial, and affords no answer to the matters alleged in the said twelfth plea.

Hugh Shield (with him was C. Russell, Q.C.), argued on behalf of the defendant in support of the demurrer to the declaration.-The declaration shows no cause of action. This statute was passed expressly for a public purpose, namely, the prevention of contagious diseases amongst cattle being introduced into this country by means of animals imported hither from over the sea, and it in no way contemplated or intended to confer any benefit on individuals. The proposition contended for on the part of the defendant is that a statutory regulation, made merely in the performance or furtherance of a public purpose, and not for the benefit of an individual, and more especially where a penalty is inflicted on anyone breaking or contravening such regulation, will not support an action at the suit of an individual who finds himself aggrieved by such breach or contravention. In

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Couch v. Steel (3 E. & B. 402; 23 L. J. 125, Q. B.), an action by a seaman against a shipowner for neglecting to supply and keep on board a supply of medicine, as required by the 7 & 8 Vict. c. 112, 8. 18, whereby the plaintiff's health was injured, was held to be maintainable on the ground that,notwithstanding the Act imposed a penalty for the shipowner's breach of duty in that respect, as to the public, yet sailors sustaining a private injury from the breach of the statutable duty were entitled to maintain an action for damages. In the judgment of the court in that case, delivered by Lord Campbell, C.J., his Lordship explains the ground of the decision in an old case in Rolle, as follows: "In a case cited 1 Rolle Abr. 106, Action sur Case, (M), pl. 16, it appears to have been held that a person having without the king's licence imported cards into England, contrary to statute 3 Edw. 4, he was not liable to an action at the suit of one to whom the king had granted a licence to import cards, paying rent to the king, and who alleged that he was thereby disabled from paying his rent; as the statute provides that the cards unlawfully imported were forfeited, and the remedy given by the statute ought to be pursued. There, however," (says Lord Campbell) "the prohibition does not seem to have been intended for the benefit of the person to whom the licence was granted, and the damage which he sustained may have been considered too remote." That observation of Lord Campbell is strictly applicable here. Again, the case of Stevens v. Jeacocke and others (11 Q. B. 731; 17 L. J. 163, Q. B.) is on all fours with the present case. If by the statutory regulations the plaintiff has any property right, or anything for the benefit of his property, then, for the breach of that right he might have an action. But in Stevens v. Jeacocke no kind of property right was conferred on anybody by the Act of Parliament (4 & 5 Vict. c. Ivii). Its effect was simply to restrict the common law right which everybody has to fish. So here there is nothing done to confer a property right on anybody, but only to restrict a right to bring cattle by ship to this country without the observance of certain regulations. So, again, in Atkinson v. The Newcastle and Gateshead Waterworks Company (L. Rep. 6 Ex. 404), the provisions with regard to the defendant's duty with respect to the water pressure were clearly for the benefit of individual householders in case of fire, and so, though a penalty was imposed by their Act of Parliament on the defendants for any breach of such duty, yet this court held that the plaintiff, who had suffered damage from a fire by reason of such breach, was entitled to recover in an action against them. [POLLOCK, B. refers to Blamires v. The Lancashire and Yorkshire Railway Company in the Exchequer Chamber (L. Rep. 8 Ex. 283; 42 L. J. 182, Q. B.). He referred also to Cullen v. Trimble and others (26 L. T. Rep. N.S, 691; L. Rep. 7 Q B. 316; 41 L. J. 132, Mag. Cas.; and 226 Q.B.) as to the implied jurisdiction of justicies to convict summarily for offences against the Act.

Herschell, Q.C. (with whom was James Mellor), for the plaintiffs, contra, supported the declaration. Two objections had been taken against the plaintiff's right to maintain this action. First, that the statute created no duty in respect of the breach of which an action would lie; and, secondly, that there can be no action for the breach of a

duty, in respect of which breach the statute has provided a specific remedy by the infliction of a penalty. The defendant has admittedly committed a breach of the order, and the result of that breach may have been to inflict loss and damage upon the plaintiffs. Speaking generally, an action may be maintained for the breach of a statutory duty where injury accrues therefrom, as here, to an individual; and so the plaintiffs here can recover. But it is said on the defendant's part that this statute confers no benefit on individuals. Now it is clear that a damage has arisen to the plaintiffs from this breach of duty, whether it be a damage contemplated by the statute or not, and a damage which would not have happened if the statute had been complied with. [POLLOCK, B.-If the Privy Council had made an order that pens should be placed on board in order to prevent animals from being washed overboard, would not that have been ultra vires?] Whatever may have been the object and intention of the Legislature in the matter, the obvious and inevitable result of the prescribed pens being placed on board is to prevent the occurrence of such an accident as that which has happened in this case. No doubt the intention was to prevent "unnecessary suffering" to the animals, and to that end pens of a particular kind are directed to be used, and it is a necessary result of the legislative enactment that such pens are a protection to the animals from being washed overboard. Granted that it is done to benefit the animals, but they cannot be benefited without a benefit accruing therefrom to the owner, and it is a fallacy to say that this is not an enactment for the owner's benefit. It is such, whatever the intention was, and having lost that benefit by reason of the breach of duty the plaintiffs are entitled to their action. Had the sheep been thrown down on board and had their legs broken through the want of these footholds, an action would then have been maintainable, and is it to be said that there is to be no action when they are drowned, and utterly lost through the same default? [PIGOTT, B.-The damage you allege in the declaration is not that the animals were exposed to "unnecessary suffering." AMPHLETT, B.-They are more likely to take disease if they are crowded and huddled toge. ther on the passage.] But again, the statutory law is the basis of the contract between the owner of the animals and the shipowner here, and it must be assumed that the latter will perform and observe all the obligations cast by the law upon him. If that be so, then the declaration is good, because it is not the case of a stranger suing for the breach of a statute, but an owner of animals who had made a contract with the shipowner on the faith of the statute being obeyed. That distinguishes this case from Stevens v. Jeacocke and the other cases cited on the other side, in which there was no such contract. But that case is also distinguishable on another ground, namely, that the statute in that case conferred a right and annexed certain specific penalties for its infringment, and the common law right was taken away. The grounds of the decision in that case do not apply to the present case. KELLY, C.B.-It seems to me that the declaration in this case cannot be sustained, and that the action is not maintainable, and that therefore our judgment should be for the defendant. The plaintiff's are cattle dealers at Hamburgh, and the defendant is the owner of a steam vessel, which, in

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March 1873, was lying at Hamburgh, and on board which vessel the plaintiffs shipped a quantity of sheep for transport to England. The action is brought by the plaintiffs to recover damages from the defendant by reason of a large number of the sheep having been washed overboard in a heavy gale during the voyage, and drowned, in consequence of the defendant having failed to provide on board his vessel fit and proper pens with proper and sufficient battens or other footholds for the sheep as he was bound and required to do under the provisions of the Contagious Diseases (Animals) Act 1864 (30 & 33 Vict. c. 70), and the order in conncil made and passed in pursuance and under the authority of that Act. That act was passed for purely sanitary purposes, its object being the prevention of disease amongst cattle imported into this country, and the consequent spreading of such disease amongst cattle in England; and as a means to that end, certain orders and regulations were made and issued by the Privy Council, and are now in force, "for protecting such animals from unnecessary suffering during the passage, and on landing,” and the particular order, which the defendant in this action is charged with violating, provides that "the places used for animals on board vessels, on their transit by sea from any foreign port to this country" shall be "divided into pens by substantial divisions, each pen not to exceed 9ft. in breadth or 15ft. in length,”and that "the floor of each pen shall have proper battens or other footholds thereon." The objects of these regulations was really to prevent unnecessary suffering to the animals by their being overcrowded, and tumbling and jostling over and against one another on the passage, and so being brought hither in a condition which should render them more liable to become infected with disease. Now, the defendant has violated these regulations, and as the consequence thereof, the plaintiff's sheep have been washed overboard and drowned, and the answer which is made by the defendant to the claims contained in the declaration is, that the Act which provides all these regulations has imposed a specific pecuniary penalty upon the shipowner for the breach of them, which penalty can be sued for, and that consequently no action for damages, by reason of such breach of duty on the shipowner's part, will lie.

No doubt the general rule in such cases is that where an Act of Parliament prescribes a certain duty, and imposes a penalty upon the breach or non-performance of that duty, the remedy pointed out by the Act must be pursued, and no other. But then it is said that,under certain circumstances, if special damage results to anyone from the breach or violation of the statutory duty, there is then also a remedy for such damage by way of action for such breach of duty,and that is true; but in cases only where, by the Act of Parliament whose provisions are thus violated, a benefit is conferred upon the individual who suffers from the breach of duty. And if the protection or the benefit of the individual owner of the animals were the object and intention of the Act of Parliament, then undoubtedly this action might be maintained; but nothing can be more plain, on looking at the Act, than that such was not the object or intention of the Legislature in passing it, but that the providing these pens and footholds was entirely for the protection of the animals themselves from unnecessary suffering