1865. MARSDEN V. CITY AND COUNTY ASSURANCE COMPANY. non, BYLES, J. The injury did not originate from fire; it was only the distant or remote cause, although a cause sine quâ The loss would not have happened without the fire; nor if the persons present and doing the damage had not been born. The efficient and proximate cause of the loss was the felonious conduct of the mob and their shoplifting : applying the ordinary rule in jure non remota causa sed proxima spectatur, the fire was not. Then did the loss happen " during removal"? I think the original impression of the Lord Chief Justice was correct that the removal intended is the removal of the glass from one part of the premises to another, but it may mean from one set of premises to another. This policy is adapted to the insurance of plate glass: it is headed "plate glass policy," and fixed glass vertically placed is the subject of insurance. In the clause "during removal, alteration or repair of premises" the word "removal" cannot be read as applying to "premises." Therefore the loss did not happen from breakage during removal within the excep tion. KEATING, J. The glass was broken by the act of a mob attracted by the fire, which was the mere accidental cause of their assembling; and the breakage did not occur from the fire. Therefore the present case is not within the exception, which contemplates the proximate and not the remote cause of the mischief, Then as to the meaning of the words "during removal," I think the view of my Brother Willes gives their natural construction. What causes of damage would the parties be likely to except from an insurance of plate glass? They would naturally except such occurrences as were not unlikely to take place but would increase the risk of insurance, as the repair of the premises, removal from one set of mises to another, and the removing furniture and fixtures. pre And those, I think, were the risks which this policy intended to except. As to the point of notice I agree with the Lord Chief Justice. Rule discharged. 1855. MARSDEN บ. CITY AND COUNTY As SURANCE COMPANY. TRICKETT V. GREEN. November 24. Common Law In an action for work done and materials provided, goods sold and money paid, a Judge, at the instance of the Plaintiff, made a compulsory order of reference under "The Common Law Procedure Act, 1854," sect. 3. When before the master the Plaintiff, on cross-examination, charged the Defendant with having misled and deceived him in respect of a s. 4. clause of the contract entered into between them. On motion by the Compulsory reDefendant for a rule under sect. 4, to show cause why the issue between ference to the parties should not be tried, and on affidavits stating that the De- master of a fendant would be seriously prejudiced if the question of fact were not matter of actried by a jury, and that a question of law would arise which ought to count. be reserved for the Court, the Court refused the rule, on the ground Charge of that the question was one within the province of the master to decide. THIS HIS was an action by a sub-contractor against a contractor employed to construct a railway in Ireland, for work done and materials provided under a deed of 1864. The clause of the deed on which the question arose was as follows (the Plaintiff being therein termed "the contractor"). 13th clause. "Green and King" (the Defendant and his partner) "shall have power at any time during the execution of the works hereby agreed to be executed, in the event of the same not being carried on to the satisfaction of the engineer of the company, to terminate this contract on leaving at his office a notice in writing to that effect, and thereupon the said contract shall determine, and the said Green and King shall and may thereafter enter upon the land and the works, the subject of this contract, without the hindrance of the contractor, and shall and may take and hold the plant and materials of the contractor then on the ground, and the contractor shall not be entitled, on such determination of this contract, to recover from Green and King in respect of fraud. Application for issue to be tried. 1865. TRICKETT บ. GREEN. these articles, or the works which may be executed thereunder, or of the said plant or materials, any sum whatsoever, it being the intention of the parties hereto that, in the event of the determination of this contract as hereby provided, the contractor shall thereupon forfeit to Green and King the said plant and materials, and all claims and demands which he may under this contract have against them." The Defendant, acting under this clause, determined the Plaintiff's contract in May, 1864. In March, 1865, the Plaintiff issued a writ of summons against the Defendant, specially indorsed for “ 1,305l. 6s. 5d., for work done and materials provided, goods sold and money paid by the Plaintiff for the Defendant relative to the Letterkenny Railway." There were no pleadings in the action, and on the 20th of April, at the instance of the Plaintiff, an application was made to Keating, J., under the Common Law Procedure Act, 1854, sect. 3, to refer the cause to one of the masters of the Court. This was opposed by the Defendant, but the Plaintiff stating that there was no question of law in the case, and that it was a mere question of account, the order of reference was granted, and power was given to the master to state a case for the opinion of the Court on the construction of the contract. King, the other contractor, was living out of the jurisdiction. After some meetings had been held before the master, the proceedings under the reference were postponed from time to time to allow of the examination under a commission of certain witnesses in Ireland, but eventually it was arranged that the witnesses should be examined before the master. The reference was further proceeded with on the 16th November, and on that occasion the Plaintiff stated in cross-examination that when the contract was first submitted to him he declined to sign it, on the ground that the 13th clause was of too stringent a character, and that he signed it only on being assured by the Defendant's agent that a similar clause existed in the principal contract with the company, and that the Defendant did not intend to make use of the clause unless it was made use of by the company against him. The Defendant stated in his affidavit that he should prove that no fraud was used to induce the Plaintiff to sign, that he was advised that he would be seriously prejudiced in his defence if that question were not tried by a jury, and that he was advised and believed that a question of law would arise which ought to be reserved for the Court. Macnamara (Cutbill with him) moved for a rule calling on the Plaintiff to show cause why an issue should not be tried between the parties.-Sect. 4 of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, enacts, "If it shall appear to the Court or a Judge that the allowance or disallowance of any particular item or items in such account depends upon a question of law fit to be decided by the Court, or upon a question of fact fit to be decided by a jury, or by a Judge upon the consent of both parties as herein before provided, it shall be lawful for such Court or Judge to direct a case to be stated, or an issue or issues to be tried; and the decision of the Court upon such case, and the finding of the jury or Judge upon such issue or issues, shall be taken and acted upon by the arbitrator as conclusive." This case is within the section. A charge of fraud having been made by the Plaintiff against the Defendant, it is necessary that the Defendant should have the opportunity of clearing his character before a jury. Where a question of this kind is raised by the party who caused the reference, the master ought not to decide it; the proceedings before him being necessarily private, the result only being made public, and no appeal allowed. Nor was such a question ever intended by the legislature to be compulsorily referred; Wallis v. Hirsch (a). This is the first time that an (a) 1 C. B., N. S. 316. VOL. I.-C. P. F 1865. TRICKETT V. GREEN. 1865. TRICKETT v. GREEN. application of the kind has been made to the Court. [Willes, J. Because it is usual to go to the Judge who made the order.] The 4th section, however, uses the words "a Judge" and not "the Judge who made the order." Insull v. Moojen (a) is distinguishable on the ground that the master refused to go into the question of fact, nor was the decision upon this section. It is conceded that where there is a question of fraud incidental and subsidiary to the account, the master may properly proceed with the reference; but here the question of account or no account depends entirely on whether there was fraud or not. That is a question essentially "fit to be decided by a jury.” The Plaintiff's charge has made this a question of liability and not of account. [Willes, J. referred to Browne v. Emerson (b).] In that case no question of fraud was raised. [The British Empire Shipping Co. Limited v. Somes (c) and Chapman v. Van Toll (d) were also cited.] ERLE, C. J. I am of opinion that there ought to be no rule. The case is, that a Judge at Chambers made a compulsory order of reference on a matter represented to him to be one of account. The action was brought against a contractor by a sub-contractor for work done and materials provided, &c., and the contract between the parties was under seal. When before the master, the Defendant set up a stipulation, contained in the contract, that, in the event of the work not being carried on to the satisfaction of the engineer of the company, the Defendant was to take and hold the plant belonging to the Plaintiff, and the Plaintiff was not to recover from him any sum whatever. But the Plaintiff in cross-examination said that at the time he signed the contract he was told that it was not the intention of the Defendant to put in force the clause in question, (a) 3 C. B., N. S. 359. (c) 3 K. & J. 433. |