2. Foreign Attachment-Declaring in Pro- hibition.] The plaintiffs attached by process in the Lord Mayor's Court money of the defendants in the hands of the garnishees. A rule nisi was obtained for a writ of prohibition, on the ground that the action was brought to recover calls in a public company in course of winding up, under an order made by the Master of the Rolls out of the jurisdiction of the Lord Mayor's Court, and that the defendant was a foreigner having no residence or place of business in England. Cause was shewn upon an affidavit stating that the contract for the purchase of the shares was made in London, and that the defendant carried on a large banking business through the garnishees as his agents in the city of London.-The plaintiff's being desirous of questioning the decision in Cooke v. Gill (ante, p. 107), the rule was enlarged upon their under- taking to declare in prohibition. IN THE MATTER OF WHINNEY V. SCHMIDT; THE LONDON AND WEST- 118 MINSTER BANK, GARNISHEES
5. Mayor's Court Procedure Act (20 & 21 Vict. c. clvii.) ss. 8, 10-New Trial-Leave re- served-" Upon Trial of any Issue."] By the Mayor's Court Procedure Act, s. 10, it is provided that if the judge, "upon the trial of any issue," shall grant leave to move in any of the superior Courts to enter a verdict or nonsuit, or for a new trial, the party to whom such leave is granted may move accordingly, in such Court, within the time within which motions of the like kind may be made in such Court.-Where in a case tried on Thursday the judge, immediately after the trial, refused leave to move, but on the following Mon- day changed his mind and granted it:-Held (by Bovill, C.J., and Keating and Grove, JJ., Brett, J., dissenting), that the leave could not be consi- dered as given "upon the trial of the issue" in ac- cordance with the Act. FOLKARD V. THE METRO- POLITAN RAILWAY COMPANY -
LOSS OF FREIGHT-Marine Insurance-Right of Charterer to throw up Charterparty where Vessel disabled.] The plaintiff, on the 9th of November, 1871, effected an insurance" on chartered freight valued at 29001. at and from Liverpool to New- port in tow, whilst there, and thence to San Fran- cisco," &c. The ship left Liverpool on the 2nd of January, 1872, and on the 4th, before arriving at Newport, took the rocks in Carnarvon Bay. She was got off much damaged, and returned to Liver- pool on the 12th of April, where she was sold under circumstances which the Court held not to be justifiable; there being no satisfactory evi- dence of a constructive total loss. She was re- paired by the purchaser, and was still under repair at the time of the trial, the 16th of April, 1872. By the charterparty the vessel was to pro- ceed with all convenient speed (dangers and acci- dents of navigation excepted) from Liverpool to Newport, and there load a cargo of iron rails for San Francisco. After the vessel took the rocks, and before she was got off, viz. on the 15th of February, the charterers threw up the charter, and on the following day they hired another ship to carry the rails (which were wanted for the con- struction of a railway) to San Francisco. The plaintiffs sued the underwriters for a loss of the chartered freight. The jury found that the time necessary for getting the ship off and repairing her was so long as to make it unreasonable for the charterers to supply the agreed cargo at the end of such time, and so long as to put an end in a commercial sense to the commercial speculation entered upon by the ship-owner and the char- terers:-Held, by Keating and Brett, JJ., that the charterers were absolved from loading the vessel, and that the ship-owner therefore might recover for the loss of freight.-Held, contrà, per Bovill, C.J., that the charterers were not entitled to throw up the charter, and that consequently the plaintiff could not recover against the underwriters, and that the findings of the jury were immaterial. JACKSON v. THE UNION MARINE INSURANCE COM- PANY, LIMITED
LUMP FREIGHT-Ship and Shipping-Charter- party-Loss of Part of Cargo by Perils of the Sea without Default of Shipowner-Deduction from Freight.] A charterparty from Riga to London provided that the ship should load a full and com- plete cargo of lath-wood, and deliver the same on being paid freight as follows; a lump sum of 3151. There was the usual exception of sea risks, and the freight was to be paid half on arrival, and the remainder on unloading and right delivery of cargo. Part of the cargo, loaded in accordance with the charterparty, was lost by perils of the sea, without any default of the master or crew:— Held, that the shipowner was, on delivery of the
572 NEGLIGENCE-Arbitrator See ARBITRATOR. Evidence-Public carriage
See EVIDENCE OF NEGLIGENCE. Master and servant
See NEGLIGENCE OF SERVANT. NEGLIGENCE OF SERVANT-Master and Ser- vant-Liability of Master-Scope of Employment] A stevedore employed to ship iron rails had a foreman whose duty it was (assisted by labourers) the rails from the quay to the ship after carry the carman had brought them to the quay and unloaded them there. The carman not unloading the rails to the foreman's satisfaction, the latter got into the cart and threw out some of them so negligently that one fell upon and injured the plaintiff, who was passing by:-Held, per Grove and Denman, JJ. (Brett, J., dissenting), that there was evidence for the jury that the foreman was acting within the scope of his employment, so as to render the stevedore responsible for his acts. BURNS v. POULSOM NEW TRIAL-Damages under 201.-Replevin.] The rule that a new trial will not be granted for either party where the sum given or recoverable is under 201., does not apply to replevin. EDGSON v. CARDWELL
See LORD MAYOR'S COURT. 5. NON-PAYMENT OF MONEY—Attachment See ATTACHMENT FOR NON-PAYMENT OF MONEY.
NOTICE Animal having contagious diseases 322 See CONTAGIOUS DISEASES (ANIMALS) ACT, 1869.
See STAY OF PROCEEDINGS.
NOTICE TO TREAT Covenant to repair-
NUISANCE-Insecure coal-plate
See COAL-PLATE IN HIGHWAY.
401 PAWNBROKER-continued.
OBSTRUCTION OF HIGHWAY-Compensation Ex. Ch. 191 See COMPENSATION UNDER LANDS CLAUSES
OFFICE COPY OF AFFIDAVITS-Practice- Motions.] The Court will in no case dispense with the practice which requires a party shewing cause against a rule to take office copies of the affidavits upon which it is moved. IN RE CHAF
OFFICIAL ASSIGNEE Surplus estate See GARNISHEE ORDER.
OPEN POLICY-Declaration
See INSURABLE INTEREST. 1.
241, 245, 256, [259, 265, 269, 281, 306
See VOTE FOR PARLIAMENT. PARLIAMENT-Vote for
241, 245, 256, 259, [265, 269, 281, 306
See VOTE FOR PARLIAMENT.
PAROL EVIDENCE-Custom
482 See EVIDENCE TO VARY WRITTEN CON-
PARTIAL LOSS-Depreciation in value See DAMAGE BY SEA-WATER.
had, in accordance with the section, procured from the pawnbroker a copy of the original ticket and a form of declaration, proceeded with the same before a magistrate, and having proved his title before him, straightway returned to the pawn- broker, and shewed him the declaration which he immediately, but might redeem them at any time had made, he was not bound to redeem the goods at which he might have redeemed them if he still held the original ticket, and that the pawnbroker the goods to a person producing the original was not justified in the meanwhile in delivering
ticket. BURSLEM v. ATTENBOROUGH PAWNBROKERS ACT, ss. 15, 16 See PAWNBROKER.
PAWN TICKET-Loss of ticket See PAWNBROKER.
PENALTY-Agreement for the Sale of a Public- house-Penalty or Liquidated Damages-Pleading.] An agreement for the sale of the trade-fixtures, &c., of a public-house by W. to L. at a fair valua- tion, contained the following stipulations,-that, in addition to the amount of the valuation, L. agreed to pay W. 501. goodwill; that L. was to be allowed to take, in the event of him leaving, the said sum of 501.; that L. should pay to W. 1007. for painting, &c.; that the rent was to be 751. yearly; that six months' notice to quit should be given by either party; and that, "by way of making this agreement binding, each of the above contracting parties have deposited in the hands of H. the sum of 401. each; and either party failing to complete this agreement shall forfeit to the other his deposit-money as and for liquidated damages."-In an action by L. against W. for refusing to sell pursuant to the agreement, "whereby the plaintiff had lost the advantage which would have accrued to him from the per- formance of the agreement by the defendant, and had lost the use of the money paid by him as such deposit as aforesaid:"-Held, that the plaintiff's See EVIDENCE OF PAYMENT. remedy for the breach was confined to the recovery of the 401. deposited with H.-Plea, that the plain- PAWNBROKER-Pledge of Goods-Pawnbrokers tiff sued H. for the two sums of 401. deposited Act (39 & 40 Geo. 3, c. 99), 88. 15, 16-Loss of with him "as and for liquidated damages in re- Pawn Ticket-Right to redeem.] The 16th section spect of the said breaches, and recovered judg- of the 39 & 40 Geo. 3, c. 99, provided that in casement in respect thereof :"-Held, no answer to the the pawn-ticket for goods pledged were lost, mis- action. LEA v. WHITAKER laid, destroyed, or fraudulently obtained from the owner thereof, and the goods remained unre- deemed, the pawnbroker should, at the request of the person claiming to be the owner of the goods, deliver to such person a copy of the ticket and a form of affidavit (now a declaration) stating the circumstances, and the person having obtained such copy and form of affidavit should thereupon prove his property in such goods to the satisfaction of a justice of the peace, and should verify on oath or affirmation before the said justice the truth of the particular circumstances attending the case mentioned in the said affidavit, "whereupon" the pawnbroker should suffer the person so proving such property to the satisfaction of such justice as aforesaid, and making such affidavit or affirmation as aforesaid, on leaving the copy of the ticket and the affidavit with the pawnbroker, to redeem such goods and chattels :-Held, that where a person having lost the ticket for goods pledged by him VOL. VIII.-C. P.
See VOTE FOR PARLIAMENT. 1. PLACE OF RISK UNDER POLICY-Insurance on Ship against Fire-Construction of Policy-Place in which Policy attaches.] A fire policy was effected for a certain period of time, on a steam- ship lying in the Victoria Docks, London, with liberty to go into dry dock. The ship was taken up the river, some distance from the Victoria Docks, to the nearest available dry dock; but in order that she might be able to enter the dry dock it was necessary to remove part of her paddle- wheels. This was done in the Victoria Docks. Her repairs being completed, she was taken out of the dry dock and moored in the river at a place a few hundred yards higher up than the dry dock, where she remained ten days, for the purpose of
PLACE OF RISK UNDER POLICY-continued. having her paddle-wheels replaced before return- ing to the Victoria Docks.-Whilst so moored she was destroyed by an accidental fire. proved to be usual to remove the paddles of large It was steamers to enable them to go into dry dock, and that the time occupied in the river in replacing them in this case was not unusual or unreason- able-Held (affirming the decision of the Court below), that the policy only attached upon the vessel whilst in the Victoria Docks, or in the dry dock, or in the river for the purpose of going to and returning from the dry dock, and not during her stay in the river for a different purpose, and consequently the insurers were not responsible for the loss. PEARSON v. THE COMMERCIAL UNION ASSURANCE COMPANY - Ex. Ch. 548
PLEADING-Libel-Justification See LIBEL.
Mortgage-Sale by mortgagee
See LORD MAYOR'S COURT. 1, 2, 3, 4. PROMOTER-Disclosure of contract in prospectus [328
See PROSPECTUS OF COMPANY. PROSPECTUS OF COMPANY-Company-Pro- spectus-Companies Act, 1867 (30 & 31 Viet. tracts made by Promoters or Directors.] The 38th c. 131), s. 38-Fraud-Non-disclosure of Con- section of the Companies Act, 1867 (30 & 31 Vict. c, 131), which provides for the disclosure in the prospectus of a company of certain particulars with regard to the class of contracts specified in the section, is applicable only for the protection of shareholders in the company, and creates no statu- tory duty towards bondholders of the company or 358 others for breach of which an action on the statute will lie -Quære, as to the nature of the contracts to which the provision is applicable.-Semble, per Honyman, J., that the section creates no statutory cause of action, but merely amounts to a declara- tion that, as between shareholders and those issu- ing the prospectus, the latter shall be deemed to
See SALE BY MORTGAGEE. Written contract-Agreement to carry 395 See WARRANTY OF TIME OF ARRIVAL.
PLEDGE-Loss of pawn ticket
See PAWNBROKER.
PLENE ADMINISTRAVIT Estoppel Ex. Ch. 356 have acted fraudulently. CORNELL v. HAY. THE
See ESTOPPEL BY JUDGMENT. 1.
PRACTICE Amendment-Parties -
See SUBSTITUTION OF DEFENDANT. Appeal from justices
SAME v. MASSEY. THE SAME v. TORRENS 645 PUBLIC CARRIAGE-Kicking horse See EVIDENCE OF NEGLIGENCE. PUBLIC HEALTH ACT, 1848
See SUSPENSION FROM PRACTICE.
Bill of exchange-Common law
See SUSPENSION FROM PRACTICE.
RAILWAY COMPANY-Signals at junction-Pay-
See COSTS UNDER COUNTY COURT ACTS.
RESERVATION OF MINES-Conveyance of Land RESTRAINT OF PRINCES-continued. subject to Reservation of Mines and Mining Powers carried from Shanghai to Hong Kong in a steamer -Compensation to Grantee for Exercise of Powers belonging to the Messageries Impériales, and were reserved-Mode of Assessment-What Damage the there transhipped into another steamer of the Subject of Compensation.] A conveyance of land same company and carried through the Suez in fee was made subject to a reservation to the Canal to Marseilles,-this being the ordinary grantors of mines and minerals, and extensive course of business of that company in carrying powers of occupying and using the surface for the goods from Shanghai to Marseilles. Goods are purpose of working the same. It was provided carried by the Messageries Impériales at through thereby that it should not be lawful for the rates from Shanghai to London; and the freight grantee to do or suffer anything to be done where- upon the silks in question was paid to that com- by the grantors should be prevented, hindered, or pany for the whole journey.-At the time of obstructed in the exercise of the powers reserved, effecting the policy, the steamers of the Message- and also that the grantors should make to the ries Impériales ran from the East to Marseilles grantee annually reasonable compensation for and no further. Goods were never, in the ordi- damage or spoil of ground to be occasioned by nary course of business, carried from China, Japan, the exercise of the reserved powers. Previously or India to London viá Marseilles, except by the to the date of the deed of conveyance the premises Messageries Impériales, and that company always were leased to the grantee, subject to similar re- sent such goods overland through France,-by the servations to those in the conveyance, and workings Lyons railway from Marseilles to Paris, and already existed which had taken place under such thence by the Northern railway to Boulogne, reservations:-Held, that no restriction was placed and thence to London: and this course of busi- by the words of the conveyance on the use by the ness was well known among underwriters.-The grantee of the land for any purpose to which it silks in question, having reached Marseilles, were was applicable so long as he did not touch or forwarded by the Lyons railway to Paris on the interfere with the minerals, and the compensation 3rd of September, 1870, and arrived at the Paris for damage or spoil of ground occasioned by the station on the 13th. At this time the German exercise of the powers reserved must be estimated armies had invaded and occupied a large part of with reference to the value of the land for any France, and were advancing upon Paris, which purpose to which an ordinary owner might put it; they had completely surrounded and besieged by and that compensation was due in respect of dam- the 19th, preventing all communication between age arising from the use subsequently to the con- Paris and all other places, so that it was impos- veyance of land included therein that had been sible to remove the silks from Paris. This state previously occupied and used for mining purposes, of things continued until (and long after) the 7th but not in respect of the mere existence of work- of October, on which last-mentioned day the as- ings in being at the time of the deed, or their sub-sured gave notice of abandonment. After the sequent user without any fresh damage. MORDUE v. THE DEAN AND CHAPTER OF DURHAM 336
RESTRAINT OF PRINCES-Marine Insurance Description of Voyage-Overland Transit-Hostile Detention of Goods in a besieged Town-Abandon- ment-Total Loss.] A marine policy may cover the risks during a portion of the transit to be per- formed overland, provided apt language be em- ployed to express that intention.-The hostile de- tention of goods within a besieged city or town is a "restraint of princes;" a "siege" and a "block- ade" standing upon the same footing in this respect. In a policy of insurance the course of the voyage was thus described:-"At and from Japan and [or] Shanghai to Marseilles and [or] Leghorn and [or] London viâ Marseilles and [or] Southampton, and whilst remaining there for transit, with leave to call at any ports or places in or out of the way for all purposes, including all risks of craft to and from the steamers, &c., upon any kind of goods, &c., in the good ship or vessel called the steamers or steamer, per overland, or viâ Suez Canal," &c. The risks insured against were, amongst others, of the seas, men of war, enemies, surprisals, takings at sea, arrests, re- straints and detainments of all kings, princes, and people," &c. In the margin of the policy was the following memorandum,- "It is hereby agreed that the silks insured by this policy shall be shipped by Peninsular and Oriental Company, Messageries Impériales steamers, and [or] the steamers of the Mercantile Trading Company of Liverpool only."-The goods insured (silks) were
commencement of this action the silks were for- warded to London; and they arrived there in an undamaged state on the 20th of March, 1871.— Upon a special case setting forth the above facts, the Court to draw inferences:-Held, first, that the policy covered the whole journey from Shan- ghai to London, including the overland transit from Marseilles to Boulogne ;-Secondly, that the detention of the silks in Paris by reason of the state of siege was a "restraint of princes" within the meaning of the policy; and consequently that, the goods being lost to the assured for an indefi- nite time, they were entitled to abandon, and to recover against the underwriters as for a total loss. RODOCANACHI v. ELLIOTT REVISING BARRISTER-Duty of-Disqualifica-
See VOTE FOR PARLIAMENT. 1. RIGHT OF SPORTING-Inclosure Act-Game- Reservation of Rights of Shooting to Lord of Manor.] An inclosure Act directed the commis- sioners appointed thereby to allot to the lady of the manor, her heirs and assigns, a certain pro- portion in value of the lands to be inclosed, in lieu of and as a full compensation for the right and interest of such lady of the manor in and to the soil of the said lands, and to allot the residue amongst the other persons entitled to rights of common; and it was enacted that the several allotments should be vested in the allottees re- spectively, in full bar of and satisfaction for all rights of common and other rights and interests whatsoever in, over, and upon the said lands (ex-
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