1834. DEAN V. HOGG. London, the Plaintiff, an attorney, a stranger to the Defendant, stepped on board, not being aware that the vessel had been hired for the day by Lewis, and his embarkation being countenanced by the captain. The Plaintiff was not long in discovering that he had intruded into a private party, and expressed to some one near him his readiness to quit the vessel when an opportunity should present itself; but the person so addressed rather counselled him to stay. However, by the time the Adelaide had reached Battersea, it was generally bruited about that a stranger was on board. The ladies became alarmed; and Hogg, as the Plaintiff alleged, in an imperious tone, ordered him to quit the vessel. The Plaintiff, irritated by what appeared to him a harsh manner of making a lawful request, refused to go; whereupon the Defendants, after calling on the captain to remove the Plaintiff, with considerable violence shoved him into a boat alongside, and, in so doing, tore off the skirts of his coat. For this assault, the Plaintiff now sued them in trespass; and having obtained a verdict for 10l. damages, the question, upon a motion to set aside the verdict and enter a nonsuit instead, was, whether, under the above contract with the owner, Lewis had such possession of the steam vessel as to support the Defendant's second plea, which alleged that Lewis was lawfully possessed of the steam vessel mentioned in the declaration; that the Plaintiff was unlawfully in the steam vessel, from which he would not depart when requested; and then justified the committing of the trespasses by the Defendants in defence of the possession of Lewis, and in order to remove the Plaintiff from the vessel. Spankie Serjt., in moving for the rule nisi, contended that, under the contract for the 28th of May, the Defendant Lewis had the exclusive possession of the vessel. It was manifest that he had hired the whole of it for the accommodation of a private party, and he was therefore entitled to expel an intruder. In Hutton v. Brugg (a) the Court of Common Pleas held, that by the charter of an entire ship the possession was parted with to the charterer, so that the owner could have no lien for the freight of goods put on board; and there was no difference in principle between the hiring a ship for a distant voyage and a steam boat for a single day. Wilde Serjt. shewed cause. It appears from cases subsequent to Hutton v. Bragg that the question whether or not the possession of a vessel passes out of the owner to a charterer, depends upon no single fact or expression, but upon the whole of the language of the contract as applicable to its attendant circumstances. Christie v. Lewis (b), Tate v. Meek (c), Saville v. Campion. (d) Here, applying the contract to its attendant circumstances, it is plain the possession of the steam boat was to remain with the owner. The contract was in effect no more than a contract to convey Lewis and his party to Richmond; for a captain and crew employed and paid by the owner were to navigate the vessel, and Lewis would have been incompetent to do so. The owner would have been responsible for collisions with other vessels, and for the misconduct of the crew. In Laugher v. Pointer, Abbott C. J. said (e), “If the temporary use and benefit of the horses will make the hirer answerable, and there be no reasonable distinction between hiring them with or without a carriage, must not the person who hires a hackney-coach to take him for a mile, or other greater or less distance, or for an hour, or longer time, be answerable for the conduct (a) 2 Marsh. 339. (d) 2 B. & Ald. 503. 1834. DEAN V. HOGG. of 1834. DEAN V. HOGG. of the coachman? Must not the person who hires a wherry on the Thames be answerable for the conduct of the waterman? I believe the common sense of all men would be shocked if any one should affirm the hirer to be answerable in either of these cases. If the case of a wherry on the Thames does not furnish an analogy to this subject, let me put the case of a ship hired and chartered for a voyage on the ocean to carry such goods as the charterer may think fit to load, and such only. Many accidents have occurred from the negligent management of such vessels, and many actions have been brought against their owners, but I am not aware that any has ever been brought against the charterer." And though in that case where the carriage belonged to the defendant and the horses and driver to a liverystable keeper, of whom he had hired them for a job, the Judges were divided in opinion which of the two should be liable, in Fletcher v. Braddick (a) it was expressly decided that the owner of a chartered ship who employs and pays the crew is liable for collisions, and not the charterer. Spankie and Coleridge Serjts. in support of the rule. The liability of the owner for the consequences of accidents is no test of his having a possession incompatible with a right in the hirer to maintain trespass for an intrusion on his qualified property. The party who hires a chaise, or the whole of the inside of a coach, may sue an intruder in trespass, and yet the proprietors would be responsible for accidents occasioned by their servants or vehicles. For all ordinary purposes, the innkeeper and the proprietor of theatres are in possession of their respective buildings; and yet the guest at an inn, or the spectator at a theatre, may maintain trespass (a) 2 N. R. 182. against against a stranger who forces the apartment or the box they have hired for themselves. A transient interest, such as herbagium terræ, is sufficient to entitle the percipient to maintain trespass: Crosby v. Wadsworth (a), Com. Dig. Trespass, (B). The contract here was not a mere contract to convey the Defendant Lewis to Richmond, but that he alone and his party should go in the vessel. The introduction of a stranger was a breach of the contract; and, if so, the contract was for the exclusive possession of the vessel during that excursion. Cur. adv. vult. TINDAL C. J. The question which has been argued before us arises upon the second plea of the Defendants, which alleges that Lewis, one of the Defendants, was lawfully possessed of the steam-vessel mentioned in the declaration; that the Plaintiff was unlawfully in the steam vessel, from which he would not depart when requested; and then justifies the committing of the trespasses by the Defendants in defence of the possession of Lewis, and in order to remove the Plaintiff from the vessel. And the question made at the trial, and argued before us, has been, whether, upon the facts proved, Lewis had such possession of the steam-vessel as would authorise him to use force in removing the Plaintiff from it. The evidence, so far as it related to the possession of the vessel, was a letter from the owner to Lewis, in these terms: "I note the Adelaide is engaged to you for Richmond or Twickenham, at the hire for the day of 5l. 10s., your party not exceeding fifty persons.” The vessel was managed by the captain and crew belonging to the same. There can be no doubt that, upon such a contract, although there is no express stipulation to that effect, VOL. X. (a) 6 East, 602. A a the 1834. DEAN v. HOGG. 1834. DEAN V. HOGG the Defendant Lewis would be entitled to the full enjoyment of the vessel for himself and his party free from the intrusion of any stranger. The circumstances of the case, and the object of the voyage necessarily imply it; so that if the captain afterwards admitted any other passengers for hire, or freight to Richmond (as in fact he did admit the Plaintiff), such admission would amount to a breach of contract between him and Lewis, for which the latter might have recovered a compensation in damages. There can also be no doubt but that, if the Plaintiff had been a stranger intruding himself against the will or without the permission of the captain, the captain himself, or the passengers in his aid, and as his servants, might have justified turning him out. And this seems to have been the opinion of the Defendants themselves, who called upon the captain to remove the Plaintiff. But the question still arises, whether, under this contract, Lewis had such an exclusive possession of the vessel, as would justify him in forcibly putting the Plaintiff out of the vessel, admitted as he had been by the captain, in defence of his possession; and we think he had not. It must be admitted, that, in the case of Hutton v. Bragg (a), cited by the Defendants' counsel, the Court of Common Pleas held, that, by the charter of an entire ship, the possession was parted with to the charterer, so that the owner could have no lien for the freight upon goods put on board; but subsequent cases have narrowed the generality of this doctrine, and have decided, that the question, whether the possession of the ship has or has not been given up to, and taken by, the charterers, must depend upon the terms of the instrument taken altogether, or upon the purpose and object of it. (See Trinity House v. Clark (b), and Yates and Others v. Railston. (c)) Here there was no express contract for the exclusive (a) 2 Marsh. 339. (c) 8 Taunt. 293. possession |