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![handle is hein.slavery/ssactsengr0252 and id is 1 raw text is: BROWN V. MALLETT
practice of the court, he was exonerated and discharged from rendering himself
according to the condition of the bond.] The court will be presumed to know, as a
matter of general law, that, if a plaintiff thinks fit to issue a writ, and to cause the
defendant to be arrested upon it, so as to give the former the highest satisfaction
known to the law, he cannot complain of the defendant's not doing something which
is not only quite superfluous, but is rendered absolutely impossible of performance by
reason of his own act. [Maule, J. The plea does not aver, that, by the act of the
plaintiff, it became impossible for Hales to render. I doubt whether, by the practice
of the court, a man who has been taken under a ca. sa. can say I surrender.] The
court will probably allow the defendant to amend the plea by alleging more distinctly
the impossibility to render. [V. Williams, J. Suppose you state the facts, and then
conclude,-per quod it became impossible, by the practice of the court, for Hales to
render. It would then be matter of legal intendment, and not traversable.] The
court, on the former occasion, treated it as an averment that might be traversed.
[Maule, J. Where matter is in itself traversable, it is not the less so because introduced
by a per quod.] That was so held by this court in Pryce v. Belcher (ante, vol. iii. p. 58).
[598] Butt. This plea having been added after judgment, and as a very special
favour, the court will hardly be disposed further to extend the permission to amend.
MAULE, J. There is not such a total absence of merits in this case, as to induce
us to refuse the amendment prayed. The plea may he amended, on the same terms
as before.
Rule accordingly.
End of Hilary Term.
[599] CASES ARGUED AND DETERMINED. IN THE COURT OF COMMON PLEAS, AND
UPON WRITS OF ERROR FROM THAT COURT TO THE EXCHEQUER CHAMBER, IN
HILARY VACATION, IN THE ELEVENTH YEAR OF THE REIGN OF VICTORIA.
BROWN AND OTHERS V. MALLETT. Feb. 9, 1848.
[S. C. 17 L. J. C. P. 227; 12 Jur. 204. Distinguished, Manley v. St. Helens Canal and
Railway Company, 1858, 2 H. & N. 854. See Vivian v. Mersey Docks and Harbour
Board, 1869, L. R. 5 C. P. 29. Distinguished, The Industrie, 1871, L. R. 3 Ad.
& E. 307. Considered, The Douglas, 1888, 7 P. D. 155. Applied, The Utopia, [189:3]
A. C. 496. Approved, Arrow Snipping Company v. Tyne Commissioners, [1894] A. C.
528. See The Snark, [1899] P. 79 ; [1900] P. 105.]
Where a vessel is sunk by accident, and without any default in the owner or his
servant, in a navigable river, and remains there under water, no duty is ordinarily
cast upon the owner to use any precaution, by placing a buoy or otherwise, to
prevent other vessels front striking against it. The owner is therefore not liable to
an indictment, or to an action at the suit of a party sustaining special damage, in
respect of such omission.-Where a declaration, after stating certain facts, alleges
that it thereupon became the duty of the defendant to do a certain act, such
allegation is to be understood as a mere exposition of the legal liability supposed to
result from the previously stated facts,-as, an assertion that the defendant became
thereby bound by law to do the act,-and not as a distinct substantive allegation.
-In such a case, the word thereupon is to be understood not merely as
afterwards, but as equivalent to thereby.-Unless the duty results, in all cases,
from the facts, a declaration so framed is bad in substance.-The allegation of duty
is superfluous, where the facts stated shew a legal liability, and it is useless where
they do not.
Case. The declaration stated, that, before the happening of the damage and
injury therein mentioned, to wit, on the 8th of June, 1845, a certain barge of [600]
the defendant,-and of which the defendant was then in possession, and over which
the defendant, by his mariners and servants in that behalf provided, then had the
care, management, direction, and control,-foundered, sank, and went to the bottom,
in a certain navigable river in Engand, to wit, the river Thames, at and in a certain
navigable part and place of and in the said river, where no obstruction to the naviga-
101.3
5 C. B. 598.](ViewImageLocal?handle=hein.slavery/ssactsengr0252&div=1&collection=&method=preview&ext=.png&size=3)