limited by the assured to such freight only as he has an insurable interest in at the time of effecting the assurance. Allison v. The Bristol Marine Insur. Co., C.P., 334

By a charter-party under which plaintiff's vessel was chartered to carry a cargo of coal from Greenock to Bombay, freight was to be paid on the right delivery of the cargo at a certain rate per ton on the quantity delivered, and such freight was to be paid half in cash on signing bills of lading and the remainder on the right delivery of the cargo. The vessel left Greenock with her chartered cargo and was wrecked on the voyage, and half its cargo was totally lost, but half was saved and delivered at Bombay the port of destination, but as the freight in respect of such cargo was less than the freight which had been paid in advance on signing the bills of lading, plaintiff received no freight on the delivery of such half but totally lost the same:Held, that the freight which the plaintiff so lost was recoverable as a total loss under an insurance of "freight" by the said vessel, on the said voyage, which the plaintiff effected after the charter-party, although the underwriters were not informed, at the time, of such charter-party, and that part of the freight was payable in advance, as the plaintiff at the time of effecting such insurance had only an insurable interest in so much of the freight as was payable on the delivery of the cargo at the port of destination. Ibid.

insurable interest entitling parties to bring action]-Plaintiffs were cotton brokers and agents in London, who were accustomed to receive consignments of cotton from Bombay for sale on behalf of the shippers who drew bills of exchange on them against the consignments; the bills of exchange were usually negotiated in India, sent to this country with the bills of lading attached as security, presented to, and accepted by, plaintiffs against delivery of the shipping documents; and plaintiffs were in the habit of effecting open floating policies of insurance with the defendants "as well in their own names as for and in the name or names of all and every person or persons to whom the same doth, may or shall appertain in part or in all." Cotton having been shipped, bills of exchange drawn on plaintiffs against it, negotiated and sent with the bills of lading and accepted against delivery of the documents, plaintiffs declared the cotton against two open floating policies previously made and not yet exhausted; and the cotton being lost, the bills of exchange paid by them, and the bills of lading obtained, brought an action on the policies, averring that they, or some or one of them, were interested to the full amount named, and that the insurances were made for the use and benefit and on account of the persons so interested:-Held, per BOVILL, C.J., and DENMAN, J., on the facts of the ease, that plaintifls had an equitable interest in every part of the cotton, and that it was intended that not only their interests but those of the other par

ties interested should be covered, and that plaintiffs having such an interest and a duty of selling and managing, were in law entitled so to insure and were the only persons to bring an action, and might aver, as they did in their declaration, and recover to the full extent, applying the proceeds to their own benefit to the extent of their own claims, and holding the residue for the other persons interested; but per BRETT, J., and KEATING, J., plaintiffs were consignees for sale of goods not arrived, who had made advances on goods, but had only a contract right as to them, and though interested in every part were not the legal owners, and therefore they were by law limited to the recovery of their own beneficial interest, which alone they could properly insure and recover, Ebsworth v. Alliance Marine Insur. Co., C.P., 305

The

risk during land transit: restraint of princes: goods in a besieged town]-By an ordinary Lloyd's policy goods were insured from Shanghai to London, via Marseilles, and whilst remaining there for transit, including all risks of craft to and from the steamers, and the risks insured included “arrests, restraints and detainments of princes." Goods sent from Shanghai to London, via Marseilles, are always sent overland through France, and this was well known to underwriters. goods insured having arrived at Marseilles, were in the usual course forwarded by railway to Paris to go from thence to Boulogne; but soon after they reached Paris, that city was so completely surrounded and invested by the German armies, who were then besieging it, that it was impossible to remove the goods from it, and accordingly the assured gave notice of abandonment to the underwriters of the policy: -Held, that the policy covered the risk during the land transit of the goods through France, and also that there was a loss by "a restraint of princes' within the terms of the policy, which justified the notice of abandonment. Rodocanachi v. Elliott, C.P., 247

separate packages: damage to some packages by sea water, to others from suspicion and prejudice]-By a marine policy of insurance the insurance was described to be "on 1,711 packages teas," valued at one sum, on a voyage from New York to London, by a certain ship "warranted by the assured free from damage from dampness, change of flavour, or being spotted, or mouldy, except caused by actual contact of sea water with the articles damaged, occasioned by sea perils." In case of partial loss by sea damage to certain goods, not including tea, the loss shall be ascertained by a separation and sale of the portion only of the contents of the packages so damaged, and not otherwise; and the same practice shall obtain as to all other merchandise, [as far as practicable." The ship met with very bad weather during the voyage, and 449 of the 1,711 packages of the tea were seriously damaged by actual

contact of sea water. The rest of the packages
arrived sound and in good condition, except by
the injury to their reputation from having
formed part of a shipment of which 449 pack-
ages had been damaged by sea water, and which
was the cause, as was usual in such cases, of
these packages, though sound and uninjured,
not realising so high prices as they would have
done if the 449 packages had not been damaged
by sea water:-Held, that the packages insured
by the above policy were divisible, and that the
assured was entitled to recover only in respect
of the 449 packages which were actually
damaged. Also, that the loss in value of the
goods depended on their value at the time
of their arrival at the port of destination, and
not at the time of sale, and the underwriters
were therefore not liable for a fall in the market
price between such arrival and the time of sale.
Cater v. The Great Western Insur. Co. of New
York, C.P., 266

MARINE INSURANCE (continued)—voyage or time
policy: South-West African coast trade: devia-
tion: meaning of "stay and trade"]-By the
terms of a marine policy the insurance was
expressed to be an insurance on a vessel and
cargo "at and from Liverpool to the west
and (or) south-west coast of Africa during
her stay and trade therein and back to a
port of call or (and) discharge in the United
Kingdom." The premium was 8 guineas per
cent. on the value insured. 20 per cent. of the
premium was to be returned for the risk ending
in ten months and 40 per cent. for the risk
ending in eight months; and there was written
in the margin "held covered at 13s. 4d. per
cent. per month if longer than twelve months
out.' The vessel having stayed a month on
the African coast for the purpose of earning
salvage, and having been damaged there, and
afterwards stranded on her voyage home, the
owners sued for a total loss :-Held, that the
words "stay and trade" meant "stay for the
purpose of trade"; and that, no evidence being
given that staying for salvage purposes was
staying for an ordinary purpose of the South-
West African coast trade-the risk had been
substantially varied, that there was in the ab-
sence of such evidence no question for the jury,
and that they were properly directed to find for
the underwriters. The Company of African
Merchants (Lim.) v. The British and Foreign
Marine Insur. Co. (Lim.) (Ex. Ch.); Ex., 60

-

slip policy: concealment of material facts:
Lloyd's lists: election to avoid contract]-There
is no presumption of law that underwriters are
acquainted with the contents of Lloyd's Lists, so
as to discharge an assurer from the duty of
communicating material facts known to himself
and published in those lists. Morrison v. The
Universal Marine Insurance Company, limited,
Ex. 17

slip policy: concealment of material fact:
election]-Underwriters having agreed upon the

terms for a marine insurance with the broker
of the assured, initialed the slip and debited
the broker with the premium, in ignorance of
facts material to be communicated to them, and
known to the broker. Shortly afterwards the
underwriters discovered the concealment, and
mentioned it to the broker, but raised no objec-
tion, and afterwards, at the usual time, executed
and delivered to the broker in silence a stamped
policy in accordance with the slip. News of a
total loss having arrived, they repudiated their
liability on the ground of the concealment and
the assured sued them on the policy. By 30 &
31 Vict. c. 23, s. 9, no policy shall be pleaded
or given in evidence in any Court, or admitted
in any Court to be good or available in law or
in Equity unless duly stamped. It was conceded
that in effecting marine insurances, when the
slip is initialed the contract is considered con-
cluded; and it was proved to be the usage to issue
a stamped policy in accordance with the slip, no
matter what might happen after the slip was
initialed-Held (reversing the judgment of the
Exchequer, page 17), that since the assured had
not been induced to alter his position by a belief
that the underwriters had elected to treat the
contract as binding, the delivery of the stamped
policy was not an act of estoppel; nor
even prima facie evidence of an election, so as to
make it incumbent on the underwriters to
shew that the assured did not understand, or
had no right to understand, the conduct of the
underwriters as an election. Morrison v. The
Universal Marine Insur. Co. Lim. (Ex. Ch.),
Ex., 115

MARRIED WOMAN-registration of stock in name of
married woman]-Upon the application of a mar-
ried woman under the Married Woman's Property
Act, 1870, s. 4, that shares in a joint stock com-
pany may be registered in her name as a mar-
ried woman entitled to her separate use, it is the
duty of the company to investigate and recognise
her title, and a mandamus to enforce the per-
formance of this duty will be granted by the
Court. The Queen on the prosecution of Fraser
v. The Carnatic Rail. Co. (Lim.), Q.B., 169

Order on to pay debt under the Debtors
Act, 1869. See Debtor and Creditor.

MASTER AND SERVANT-action by governess: non-
disclosure of material fact: absence of fraud-
In an action by a governess for breach of an agree-
ment in writing, in which she was described as
M. K., spinster, and by which defendant under-
took to employ her for a term of three years, it
was pleaded that plaintiff intending to induce de-
fendant to enter into the contract, concealed from
him a fact material to her qualifications as such
governess, and material to be known by de
fendant in engaging her as such governess,
namely, that she had previously been married,
and that the marriage had been dissolved by
decree of the Divorce Court:-Held on demurrer,
that the plea was bad, as there was no allegation

of fraud, and the mere non-disclosure of a material fact was, except in the case of policies of insurance, no answer to an action upon a contract. Fletcher v. Krell, Q.B., 55

evidence of negligence of servant in his employment] The fact that a passenger in an omnibus is struck by the driver's whip is prima facie evidence of negligence by the driver in the course of his employment; and even if it appear that the blow was struck at the servant of another omnibus with whom there had been a dispute, and who had jumped on the omnibus step to get its number, it is a question for the jury whether the blow was struck by the driver in private spite or in supposed furtherance of his employer's interests. Ward v. The General Omnibus Company (Ex. Ch.), C.P., 265

negligence of servant: acting within scope of employment]-One W. being employed to cart certain iron to a wharf, and defendant, a stevedore, to ship it on board a ship alongside, defendant's foreman, who was acting for him, being dissatisfied with the uncarting of the iron by W.'s carters, got into the cart, threw out some iron, and in so doing injured plaintiff. Two of plaintiff's witnesses said it was the duty of W.'s carters to put the iron on the ground, and of the stevedore then to take it, and this was the only evidence as to the duty of defendant and his servants:-Held, by GROVE, J., and DENMAN, J., that it was a question for the jury whether, in the particular case, the foreman was acting within the scope of his employment; but by BRETT, J., that the Judge was bound to say that what was done by him was done before his employment by defendant commenced. Burns v. Poulson, C.P., 302

Liability for acts of Servant. See Carriers by Railway. And see Negligence. Principal and Surety.

MAYOR'S COURT OF LONDON. See Appeal. Inferior Court. Prohibition.

MEDICAL ACT-right of surgeon to sue for medicines unconnected with surgical treatment]-Under the Apothecaries Act (55 Geo. 3. c. 194), s. 21, which is not repealed by the Medical Act, 1858 (21 & 22 Vict. c. 90), ss. 31, 32, a member of the College of Surgeons, registered as a surgeon only under the later Act and having no further qualification, cannot recover for medicines administered by him in a case, not requiring surgical treatment. Leman v. Fletcher, Q.B.,

214

METROPOLIS GAS ACT, 1860 - The provisions of this Act are not repealed by the Gas Light and Coke Company's Act, 1868-affirming the decision of the Queen's Bench, 41 Law J. Rep. (N.S.) Q.B. 36. The Gas Light and Coke Com

pany v. The Vestry of St. George, Hanover Square (Ex. Ch.), Q.B., 50

METROPOLIS LOCAL MANAGEMENT ACTS - Provisions for paving new streets. Lands used for purposes of a railway. Higgins v. Harding, (M.C., 31), Q.B., 27

paving expenses: apportioned amount of expenses payable by future owners] --The effect of the 77th section of the Metropolis Local Management Act, 1862, is to make the apportioned amount of paving expenses incurred under the Act a charge on the premises in respect of which the amount has been apportioned; and the District Local Board may recover the amounts so apportioned from subsequent owners of the premises accordingly, although no arrangement be made for payment by instalments-affirming the decision below, Ex. page 50. Ingoldby v. Plumstead Board of Works (Ex. Ch.), Ex., 136

Building erected beyond general line. Limitation of time for complaint. Penalty or forfeiture. Vestry of Bermondsey v. Johnson (M.C. 67), C.P., 161

Repairs of new street. R. v. The Hackney Board of Works (M.C., 151), Q.B., 236

MINES AND MINING LEASES-demise of mines and minerals: compensation clause: right of surface owner to support]-Declaration for negligently excavating and working mines under and adjacent to land of the plaintiff, whereby the land gave wayand sank, and a mill, cottage and other buildings became prostrate and ruinous, and a stream of water was diverted from the plaintiff's land. Plea, that by an indenture of lease made before plaintiff became possessed of the land as alleged, the owners in fee demised unto certain lessees, whose interest afterwards vested in the defendants, for thirty-eight years from the 25th of March, 1839, all and all manner of veins and seams of coal, and ironstone and other stone and minerals of any manner or sort whatsoever, that should or might be found or discovered in or under the land, with full power, liberty and authority to get the coal, ironstone and other stone and other minerals out of all pits already sunk or open, and the like liberty and authority to bore, dig, delve and sink as many other pits as the lessees might think necessary, the lessees making reasonable satisfaction to the owners in fee, their heirs and assigns, and their tenants, for the damage done to them respectively by the surface of their land being covered with rubbish or otherwise injured, or as they might sustain as well by the injury done to the lands of the owners in fee in sinking and getting the mines and minerals, as for such damage or injury as might be done or caused in the dwelling-houses or other buildings of the said owners by so doing. The lessees covenanted in case of damage or injury to such buildings to rebuild or repair the same; and

also over and besides the immediate damage to stock or crops so damaged, to pay a satisfaction for all damages sustained by the owners in fee after the rate of 40s. per annum for five years from the commencement of the damage, and after that time to pay such a price for the land so damaged as should be settled by arbitration:-Held, that upon the true construction of the lease, the owners in fee granted the absolute right to work the minerals, without regard to injury to the surface, subject only to the obligation to pay compensation according to the covenant. Smith v. Darby, Q.B., 140

servation of: compensation for damage from workings]-Lessees of lands subject to clauses reserving to lessor the minerals with power to work them, making compensation, bought the reversion subject to similar clauses, which reserved the minerals with working powers of an extensive character, and provided for compensation for damage or spoil to the ground thereby: -Held, that the true construction of the particular deed was that the compensation was to be made, not merely as to future workings, &c., but also for subsequent damage accruing from the future use of existing workings, &c., and that such compensation was to be assessed with reference to the marketable value of the land, taken or damaged, for all purposes to which it was reasonably applicable, without regard to the powers of working, &c., to which it was subject, and that there was no restriction on increasing the weight in the mines. Mordue v. The Dean and Chapter of Durham, C.P., 114

mining lease: support of surface by subjacent land: liability for subsidence]-When the owner of surface and minerals beneath grants a mining lease of the minerals for a term, there is not, outside the contract, an implied reservation of any right to have the surface supported by the minerals. The contract itself must be looked at, and construed with regard to the subject matter, in order to arrive at the extent to which the owner authorises the minerals to be removed. Eadon v. Jeffcock, Ex., 36

Where a mining lease authorised the removal of all the coal beneath the surface except certain portions, subject to a covenant to work the mine in a good and workmanlike manner,-Held, that the lessees, doing only what the lease authorised them to do, were not responsible to the lessor for the subsidence of the surface caused by their mining operations.-Dugdale v. Robertson distinguished. Ibid.

Damage to mines. See Canal and Canal Company.

MORTGAGE-right of mortgagee to sue for debt after sale of mortgaged property: equitable plea: striking out plea]-To a declaration on the mortga

gor's covenant to pay the debt, the action being brought to recover the balance due to the mortgagee, after giving credit for the money realised on the sale of the mortgaged property, the defendant pleaded, by way of equitable defence, a plea which shewed that the plaintiff had taken possession of the mortgaged property, and had sold the same under the power of sale contained in the mortgage, and had thereby, as the plea alleged, deprived the defendant of his right to have such property reconveyed to him upon payment of the money and interest due on the mortgage. This plea was pleaded under a master's order, which gave the plaintiff liberty to reply and demur thereto. Instead of demurring, the plaintiff applied for and obtained an order from a Judge to strike the plea out:Held, that such Judge's order was rightly made, as the plea was clearly bad, since it did not shew that sufficient had been realised by the sale to satisfy the debt. Rudge v. Richens, C.P., 127

See Interpleader.

MUNICIPAL ELECTION-election of borough councillor burgess on roll for two wards: selection of ward]-By the Municipal Corporation Act, 5 & 6 Will. 4. c. 76, s. 44, "if a burgess be rated in respect of distinct premises in two or more wards, he shall be entitled to be enrolled and to vote in such one of the wards as he shall select, but not in more than one." At an election of councillors for a borough which was divided into wards a burgess who was on the roll for two wards voted for the defendant in one ward, and immediately afterwards voted in the other ward:-Held, on the authority of The Queen v. Tugwell (37 Law J. Rep. (N.s.) Q.B. 275), that the vote was good, and that the voter having voted in one ward, had irrevocably made his selection, which was not affected by what took place afterwards. Regina v. Harrald, Q.B., 211

Ballot Act: duties of presiding officer and clerks: action for breach of duty: pleading] -Under the Ballot Act, 1872, it is the duty of the presiding officer at a polling station, or a clerk deputed by him, whichever of them in fact undertakes it, to deliver to the voters ballot papers bearing the official mark, and to be present, so that each voter, before placing his ballot paper in the box, can shew to him the official mark on its back; but prima facie, and in the absence of it appearing that a clerk has been deputed by such presiding officer to fulfil it, the duty lies on such officer,-So Held by the whole Court. Pickering v. James, C.P., 217

But it is doubtful whether there is a similar duty as to ascertaining, before the voters put their ballot papers in the box, whether they are properly marked with the official mark,-KEATING, J., and BRETT, J., holding that there is, and

BOVILL, C.J., and GROVE, J., that there is not.
Ibid.

Where the presiding officer or clerk commits a
breach of duty, he is liable to an action for
damages by the party aggrieved, though the
breach be not wilful or malicious,-So Held by
the whole Court. Ibid.
Where the declaration sufficiently states the duty,
and breach thereof by the defendant, and after
stating facts not sufficiently shewing the plaintiff
is aggrieved, alleges that "by reason of such
neglect of duty the plaintiff was prevented
from being elected," such allegation is one of
fact and sufficient to shew the plaintiff is ag-
grieved, So Held by KEATING, J., BRETT, J.,
and GROVE, J. (dissentiente BOVILL, C.J.). Ibid.

NEGLIGENCE-obligation to repair fence: escape
of cattle: want of notice of fence being out
of repair]-Plaintiff and defendant were occu-
piers of adjoining closes of land separated
by a fence, situated on defendant's close,
and the property of defendant. For more
than forty years the fence had been repaired
whenever repairs were necessary by the owner
and occupiers of defendant's land, and on several
occasions the fence had been repaired by de-
fendant and his predecessors in title upon
notice from the occupier for the time being
of plaintiff's close. Defendant sold the fallage
of the wood on his close to one H., who pro-
ceeded to fell the trees, and some of his servants
felled a tree in so negligent a manner that it
caused a gap in the fence through which the
plaintiff's cattle entered the defendant's close,
and having eaten some of the foliage of a yew
tree there died in consequence. In an action
in the County Court the Judge found as a fact
that there was an obligation on the part of de-
fendant to keep the fence in repair for the pur-
pose of preventing cattle lawfully in plaintiff's
close from escaping into defendant's close, and
that the escape of the cows was caused by negli-
gence of the servants of H., but that defendant
had not received notice that the fence was
broken down. Upon these facts the Judge
held that defendant was not responsible for
the injury to plaintiff :-Held, that the decision
was wrong as it appeared from the evidence
that the defendant was bound at his peril at
all times to maintain the fence and without notice
to repair it, and the damage done to the cattle.
was proximately due to the defective state of
the fence. Lawrence v. Jenkins, Q.B., 147

--

duty to fence adjoining lands : liability to per-
sons not owners or occupiers]-When a railway
company have neglected the duty imposed on
them by the Railways Clauses Consolidation
Act, 1845, to fence their line from the adjoining
lands, and in consequence of such neglect cattle
in the adjoining lands pass on to the line and
are injured by the company's trains, an action
for the injury may be maintained against the
company by the owner of the cattle, though he
has no more interest in the adjoining lands
NEW SERIES, 42.-INDEX, Com. Law.

than a license from the occupier thereof to graze
the cattle there. Dawson v. The Midland Rail.
Co., Exch., 49

injury to passenger in omnibus: evidence for
jury-In an action against an omnibus pro-
prietor for injury to a passenger, it was proved,
on behalf of the latter, that he was sitting
inside the omnibus, and was injured by one of
the horses kicking the front panel constituting
the back of his seat, and that on a subsequent
examination marks of other kicks were seen :-
Held, that there was evidence of negligence of
the defendants to go to the jury. Simpson v.
The London General Omnibus Company, C.P.,

112

causing death of servant: action for loss of
service: expense of burying servant who was also
a child]-To a declaration alleging that by
reason of the negligence of defendant's servant
plaintiff's daughter and servant was killed, and
claiming damages for loss of services and for
the burial expenses paid by plaintiff, defend-
ant pleaded-first, that the daughter and
servant was killed on the spot by the act com-
plained of, so that plaintiff did not and could
not sustain damage entitling him to sue; and
secondly, that the act complained of was a
felonious act on the part of defendant's ser-
vant, and that the servant had not, before the
action been tried, committed or prosecuted in
any way in respect of the same:-Held, per
totam curiam, that the second plea afforded no
answer to the declaration; and held by KELLY,
C.B., and PIGOTT, B., that the first plea afforded
a good answer, on the ground that, apart from
Lord Campbell's Act (9 & 10 Vict. c. 93), no
civil action is maintainable against a person
who has by negligence caused the death of
another. But held by BRAMWELL, B., that the
first plea afforded no answer, and that the
action was maintainable. Osborne v. Gillett,
Ex., 53

for injuries to passengers. See Carriers by
Railway. And see Arbitration. Equitable Plea.
Master and Servant.

NEW TRIAL. See Practice.

NONSUIT. See False Imprisonment.

NUL TIEL RECORD. See Jurisdiction.

PARLIAMENT County vote: rent-charge: actual pos-
session: operation of the statute of uses]-A rent-
charge was granted to A., B. and C. to hold to the
said A., B. and C. to the use of the said A., B. and
C., their heirs and assigns for ever as tenants
in common:-Held, that such grant took effect
at common law and not by operation of the
Statute of Uses (27 Hen. 8. c. 10) and that
therefore neither A., B. or C. had the actual
possession of such rent-charge as required by 2

D