The declaration alleged, that by an indenture of apprenticeship, under seal, between. the intestate, his son, and the plaintiff, the son, with the consent of the intestate, bound himself apprentice to the plaintiff, to be taught in the art and trade of a chemist and druggist, and with the plaintiff, after the manner of an apprentice, to remain and serve from a certain day until the term of five years thence next following should be

Coram Montague Smith, J. and Brett, J., sitting in a second court.

NEW SERIES, 38.-C.P.

fully complete and ended. And that the intestate covenanted with the plaintiff that the son should and would honestly remain with and serve the plaintiff as his apprentice during all the term. And that, though after the making of the indenture the plaintiff received the son into his service as such apprentice for the term aforesaid, and though the plaintiff had performed all things, &c., yet the son, after the making of the indenture, and during the term, did not nor would honestly remain with or serve the plaintiff as his apprentice during all the term, whereby the plaintiff lost, &c.

Plea, that the son was and is prevented by the act of God, to wit, by permanent illness, from remaining with or serving the plaintiff during all the term.

Demurrer to the plea, and joinder therein. Tapping (with him Waddy), for the plaintiff.-The plea is bad in substance. Permanent illness is no excuse-Com. Dig. tit. 'Justices,' (B. 57), Addenda, says, "Sessions cannot discharge the master from his apprentice for the apprentice's incurable sickness; the master is to provide for him in sickness and in health;" founded on The King v. Hales Owen (1)—s -see Hawksworth's case (2) and stat. 5 Eliz. c. 4. There cannot be one law for the master and one for the

(1) 1 Str. 99.

(2) 1 Wms. Saund. 313 (2) and 316 (2).

B

servant. This is an unconditional covenant to perform service. The law will not imply any exception. Paradine v. Jane (3) points out the distinction: "Where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him." Hall v. Wright (4) is in the plaintiff's favour.

[MONTAGUE SMITH, J.-There it was not impossible to perform the marriage contract. The woman had the option of taking the man in spite of the illness; civil rights might be involved.]

If the apprentice cannot personally serve, he can pay damages. The plea is also bad in form. First, it ought to have averred that the illness arose after the making of the indenture and before breach. As it stands, the illness may have existed when the contract was made. Secondly, notice of the illness ought to have been given to the plaintiff, that he might elect to dissolve the contract. The contract has not been rescinded, and the defendant might still treat it as subsisting, and sue upon itCuckson v. Stones (5), Harmer v. Cornelius (6). Thirdly, the plea ought to state what the illness is, that the Court may decide whether it is the act of God. It raises no certain issue for trial by jury. The illness may have been caused by the apprentice's own negligence.-See for instances of the "act of God," Story on Contracts, s. 752, New York Civil Code, p. 215, s. 727, Broom's Maxims, 227, and Pothier, Traité des Obligations, s. 142.

Thrupp, for the defendant.-The act of God has always been held an excuse for non-performance of a contract, e. g. where a covenant to leave a wood in the same plight is excused if the wind blows down treesSheppard's Touchstone, 173, Williams v. Lloyd (7). In Hall v. Wright (4) impossibility to perform the contract was not alleged. Wightman, J. and Erle, J., in the Court below, and three Judges as against

four in error, held the plea good without averring notice. Notice is here immaterial, since there is an implied condition that the apprentice continue capable. In Taylor v. Caldwell (8), recognized in Appleby v. Meyers (9), a contract in terms absolute was held subject to an implied condition "that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor"; and Blackburn, J. says, "In the ordinary form of an apprentice deed, the apprentice binds himself in unqualified terms to 'serve until the full end and term of seven years to be fully complete and ended,' during which term. it is covenanted that the apprentice his master 'faithfully shall serve'; and the father of the apprentice, in equally unqualified terms, binds himself for the performance, by the apprentice, of all and every covenant on his part. It is undeniable that if the apprentice dies within the seven years, the covenant of the father that he shall perform his covenant to serve for seven years is not fulfilled; yet, surely it cannot be that an action would lie against the father. Yet the only reason why it would not is that he is excused because of the apprentice's death." There is no differ ence in principle between illness and death. The form of the plea is good, for it is pleaded to the whole of the breach, which it traverses in terms.

Tapping replied.

MONTAGUE SMITH, J.-I think the defendant is entitled to judgment. This is an action on a covenant in an indenture of apprenticeship, by which the apprentice's father, since dead intestate, covenanted that the apprentice would honestly remain with the plaintiff, and serve him in the apprenticeship, during all the term for which he was bound. The breach alleges that the apprentice, after the making of the indenture, did not and would not honestly remain and serve during all the term. The plea, pleaded to the whole of the breach, avers that the apprentice was prevented by the act of God, namely, permanent illness, from

(8) 3 Best & S. 834, 836; s. c. 32 Law J. Rep. (N.S.) Q.B. 166, 167.

(9) 36 Law J. Rep. (N.S.) C.P. 331; s. c. 2 Law Rep. C.P. 651.

remaining and serving all the term. Several objections were taken to the form of the plea, but I think they ought not to prevail. The substance of the plea is, that the apprentice was prevented from serving his time by permanent illness, which was occasioned by the act of God. The main question is, whether such an illness, so caused, is an answer to the plaintiff's claim for loss of the personal service of the apprentice. I think it is. The contract is for personal service, depending on the personal capacity of the apprentice, and obviously that may be prevented by his illness caused by the act of God, or by his death, also the act of God. It seems to me that it must be taken to have been in the contemplation of the parties that a prevention by the act of God should be an excuse for non-performance of the personal service of the apprentice. If there had been no authority on the subject, I should have thought that the parties intended it to be an obligatio certi corporis, that the contract was to be performed only if health and life continued to enable it to be performed. In such a contract it is implied that ability on the part of the apprentice to perform the contract is to continue. If the apprentice is placed by the act of God in such a state that he cannot perform the contract, the parties must be taken to have contemplated that, and no right to compensation should arise.

Taylor v. Caldwell (10) seems to have been decided on the principle that where parties are contracting about a certain thing or person, there is an implied condition that the thing or person shall continue to exist in a state fit for the performance of the contract, and that if that state ceases to exist then the obligation ceases. Mr. Tapping relies on Hall v. Wright (11), but that case is distinguishable. It was a contract for marriage, and the defendant, though in a state of illness, might still have fulfilled his contract, and so have given the woman, so far as he could, the benefit of that contract. It rested with her to say whether she would take him as he was, or renounce

(10) 3 Best & S. 834, 836; s. c. 32 Law J. Rep. (N.S.) Q.B. 166, 167.

(11) 27 Law J. Rep. (N.S.) Q.B. 345: in error, El. B. & El. 746; s. c. 29 Law J. Rep. (N.s.) Q.B. 43.

the contract. The present case is different. I construe the plea to mean that the apprentice was unable to perform his service, and could not in any way fulfil his contract; whereas the man who contracted to marry could have performed that contract. This view renders it unnecessary to amend the plea by an averment that the plaintiff had notice of the apprentice's illness. The defence is good without that averment. If, however, Mr. Thrupp wishes to insert an averment of notice he can do so on payment of costs. The averment that the illness arose after the making of the indenture and before breach may be added to the plea at once without costs (12).

BRETT, J.-It was argued that this covenant was unconditional, and that though the apprentice was, by the act of God, prevented from fulfilling it, still the defendant must pay damages. If the first proposition, that the covenant was unconditional, could be maintained, then I think the second must follow. But the first is denied, on the principle that where from the nature of the contract the parties must have known that if certain circumstances arose it would be impossible to perform the contract, there, when those circumstances do arise, there is an excuse for non-performance. In such contracts an exception is implied, and I think this was such a contract. When, therefore, the impossibility is caused by the act of God, the exception applies and performance is excused. I further agree that this being the construction of the contract, notice to the plaintiff was unnecessary, and that an amendment as to notice should be made only on the payment of costs; but that the other amendment is necessary and should be made without costs. I also agree that Taylor v. Caldwell (10) is an authority for the principle of this

case.

Judgment for the defendant.

Attorneys-M. K. Braund, agent for James Green, Bradford, for plaintiff; Wickham Flower, agent for Wood & Killick, Bradford, for defendant.

(12) Thrupp elected not to amend the plea as to notice, and to adopt the amendment as to the time when the illness arose.

Lands Clauses Consolidation Act-Compensation-Thames Conservancy Act, 1857 -Railway Bridge.

By the 20 & 21 Vict. c. cxlvii. the bed of the River Thames was vested in conservators, with power to them to grant licences for embanking, making docks and building jetties, on payment of consideration, to be assessed in a particular way, and be partly paid over to the Crown; by the 21 & 22 Vict. c. cxviii, a railway company was empowered to make a railway bridge over the Thames, but the works were not to be commenced without the consent of the conservators and their approval of the plans; the railway company obtained approval of the construction of the bridge as proposed, and thereupon erected the piers of their bridge in the bed of the river-Held, that the conservators were entitled to have compensation assessed under the Lands Clauses Consolidation Act, which was incorporated as usual in the said Railway Act.

This was an action by the conservators of the River Thames against the Victoria Station and Pimlico Railway Company, on an award, under the Lands Clauses Consolidation Act, of compensation for taking and injuriously affecting a portion of the bed and shore of the River Thames in constructing the bridge.

The first count of the declaration alleged the taking and injuriously affecting of the plaintiffs' land by the defendants for the purposes of their railway, the plaintiffs' right to compensation, and the occurrence of the various steps necessary to the assessment thereof by certain arbitrators under the Lands Clauses Consolidation Act; set forth an award by such arbitrators of 807. as compensation for the defendants "having entered upon and taken, damaged and injuriously affected the said land and hereditaments, being portions of the bed, shore. and soil of the River Thames"; and averred non-payment. The second count was based on the first, and claimed the costs of the arbitration and award.

The defendants pleaded, first, that the said portions of the said bed, shore and soil of the River Thames in the notice of the said conservators in the declaration mentioned were not entered upon, or taken, or damaged, or injuriously affected, nor were nor are the plaintiffs entitled to compention in respect thereof within the meaning of the said acts, in manner and form as in those behalfs in the declaration are alleged. Secondly, that the alleged taking and injuriously affecting the lands and hereditaments of the plaintiffs in the declaration mentioned consisted in the making by the defendants of a railway crossing the said River Thames by means of a bridge which the defendants were authorized to make and erect by the said Railway Act in the declaration mentioned, and in placing and making in certain parts of the bed and shore of the said river certain works and supports which were necessary for the construction and support of the said bridge and authorized by the said Railway Act. And the defendants say that before executing or commencing the said works, or any of them, in or upon any part of the bed or shore of the said river, they duly obtained the consent and permission in writing of the plaintiffs, signed by the secretary, pursuant to the provisions of the defendants' Railway Act and of the Thames Conservancy Act, 1857, in that behalf, for the performance by the defendants of the said works in the bed and shore of the said river, and the defendants in all respects performed the said works according to the said consent and permission, and not otherwise.

The plaintiffs took issue on these pleas, and demurred to the second.

At the trial, the following facts appeared. The statute 20 & 21 Vict. c. cxlvii., by section 50, vested the bed, soil and shores of the River Thames, within the flux and reflux of the tides, in the plaintiffs; by section 52, vested the conservancy of the said river in them; by sections 53, 56, 57, gave them power to license people to make embankments, docks and jetties, on payment of a fair and reasonable compensation; by section 54. prohibited the erection, &c. of any erection, building or works in or upon the bed or shore of the River Thames, or the driving of any piles therein without the conservators' permission; by section

58. provided that the consideration for the licences should be such as in the judgment of a person appointed in a specified way should be deemed the true and fair worth or value thereof to the person obtaining such licence, and that no such licence should be granted by the conservators without such previous valuation; and by sections 103. and 104. provided that the conservators should render an account to the Crown, and pay over one-third of the money received for such licences.

The statute 21 & 22 Vict. c. cxviii. (which enabled the defendants, amongst other things, to make the bridge) provided, by section 31, that the defendants should not execute or commence the execution of any work whatsoever upon the shore of the River Thames without the consent in writing of the conservators of the River Thames, signed by the secretary of the said conservators; by section 32, that the bridge to be erected for the purpose of carrying the railway across the River Thames should be executed according to a plan and elevation and upon a site to be approved by the conservators of the Thames, and deposited in their office; by section 34, that nothing in the act should authorize the defendants to embank, encroach upon, or interfere with any part of the soil or bed of the River Thames, or the shore thereof, except according to such plan; and by section 35, that nothing in the act should extend to prejudice or derogate from the estates, rights, interests, liberties, privileges or franchises of the conservators of the Thames, or to prohibit, defeat, alter or diminish any power, authority or jurisdiction which at the passing of the act the conservators did or might lawfully claim, use and exercise.

The site of the bridge was included in the deposited plans and schedule. The piers of the bridge were erected on the bed of the river, and were erected without payment of and before claim for any compensation; but before the commencement of the works the defendants received the following letter from the plaintiffs' secretary: "Thames Conservancy Offices, "41, Trinity Square, Tower Hill, E.C., "10th August, 1858. "Sir,-Having laid your letter of the 29th of July last before the conservators

of the River Thames, together with a plan of the proposed railway bridge over the Thames for the Victoria Station and Pimlico Railway Company, I am directed to inform you the conservators have given their approval for the construction of the bridge as proposed. I am, Sir, &c.

"E. Burstal. "John Fowler, Esq., Victoria Station and Pimlico Railway Company."

A verdict was found for the plaintiffs for the amount claimed, with leave to the defendants to move generally to enter a nonsuit or verdict for themselves, and a rule nisi having been obtained, it was arranged that the arguments of the rule and the demurrer should be taken together.

Prentice (Raymond with him) shewed cause and supported the demurrer.—The other side say that they can take the land without compensation, and that, at all events, the wrong mode of recovering it has been adopted. By 20 & 21 Vict. c. cxlvii. ss. 50, 52, 56, 58. the soil of the bed, foreshore and bank of the river is vested in the plaintiffs, and certain powers are given to them to consent to the erection of piers, &c. and the user of the banks, such consent, however, only to be granted on payment of compensation, which is to be assessed by a certain officer and to be accounted for, as the Crown has an interest therein. Then, by 21 & 22 Vict. c. cxviii. ss. 31, 32, 35, power is given to the defendants to make a bridge across the river on obtaining the consent of the plaintiffs to the works. This consent is merely with respect to the nature of the works, but as respects the taking of the land the plaintiff's are in the same position as other landowners, and, under the Lands Clauses Consolidation Act, are entitled to compensation. It is said that the plaintiffs may give a licence for nothing, and have done so; and that even if the licence be not for nothing, yet an action on the licence is the proper remedy. Even if this were a licence under the Conservancy Act, it could not be granted for nothing, but, in truth, it has been only obtained under section 31. of the Railway Act, and is an approval merely of the works. By that act the defendants cannot make the bridge without the plaintiffs' approval; but the plaintiffs' rights are not abridged, and they are entitled to compensation. This being so, the rule should be