1822. PALMER v. BLACKBURN. In the case of Pelly v. The Royal Exchange Assurance Company (a), the principles which are to be observed as to the construction of policies were considered by Lord Mansfield with great accuracy and perspicuity. There, the insurance was on the body, tackle, and apparel of the ship; and the perils mentioned in the policy were the common perils, viz. "of the seas, men-of-war, fire, &c. ;" and on the ship's arrival at her outward port, the sails, rigging, &c. were taken out of her, and put into a warehouse on a place called Bank-saul, in the Canton river, and were there destroyed by fire. As the sails, &c. were not on board at the time of the loss, it was contended, that it did not come within the policy; but as it was found to be the universal usage for ships on a voyage of that description to take out their sails, &c. and put them on shore in such warehouses, it was held, that it must be considered in the same light as if they had remained on board the vessel, within the meaning of the policy. So, here, the course that has been adopted appears to be according to the accustomed usage on policies of this description. Rule refused. (a) 1 Burr. 341. Saturday, Nov. 9th. The Court refused to require the plaintiff to give security for costs, although it was sworn that he was insolvent, and that the action MORGAN v. EVANS and others. MR. Serjeant Vaughan applied for a rule nisi, that the plaintiff might give security for costs, on an affidavit, which stated that he was an attorney, and that although the action was brought in his name, it was for the benefit of one Copeland, who was alone beneficially interested in was brought in his name for the benefit of J. S., who was alone beneficially interested in the result. the result. That a distress had been levied by the defendants, as the assignees of a bankrupt, on the goods of a person named Pitt, for rent due from him to the bankrupt; and that the plaintiff merely rented a room in Pitt's house, and that he was altogether in insolvent circumstances. But the Court observed, that there was no ground for the application, and that even in the case of an uncertificated bankrupt, security could not be required where the action had been brought for his own benefit. The learned Serjeant, therefore, took nothing by his motion (a). (a) Sec Field v. Carron, 2 H. Bl. 27. Anonymous, 2 Taunt. 61. Townsend v. Snow, 1 Marsh. 477. S. C, nomine Snow v. Townsend, 6 Taunt. 123. Minchin v. Hart, 1 Chit. Rep. 215. 1822. MORGAN V. EVANS. SHEARS and another v. WOOD. Saturday, Nov. 9th. action on the case for divert ing a stream of plaintiffs' mills, water from the the declaration alleged, that THI was an action on the case, for diverting the Where, in an water of a stream or river from the plaintiff's mills :The first count of the declaration stated, that the plainliffs, before and at the times of committing the grievances by the defendant, were, and from thence hitherto have been, and still are lawfully possessed of a certain mill and premises, situate at Croydon, in the county of Surrey, and by reason thereof of right have had and enjoyed, and still of right ought to have and enjoy the benefit and advantage of the water of a certain stream or watercourse in the said county, which during all that time of right the placed and raised a certain dam across the stream, and thereby divert ed and turned the water, and prevented it from running along its usual course to the plaintiff's mill, and from supplying the same with water for the necessary_working thereof, as the same of right ought, and otherwise would have done :-Held, that such allegation was supported by proof, that in consequence of the dam, the water was prevented from being regularly supplied to the plaintiff's mill, although the stream was not diverted, as the dam was erected above the mill, and the water returned to its regular course long before it reached the mill, and there was no waste of water occasioned by the erection of the dam. 1822. SHEARS V. WOOD. - ought to have run and flowed, and until the diversion thereof thereinafter mentioned of right had run and flowed, and still of right ought to run and flow unto the said mill and premises of the plaintiffs, for the supplying the same with water for the working and using thereof. The plaintiffs then assigned for breach, that the defendant, unjustly intending to injure them, and deprive them of the benefit of the water of the said stream, and hinder them from working their mill in so ample and beneficial a manner as they had theretofore done, wrongfully and injuriously put, placed, and raised a certain dam in, upon, and across the said stream or watercourse, and cut, dug, and made in and out of the sides of the stream or watercourse, above the said mill and premises, higher in the stream than the said mill, &c. of the plaintiffs, divers sluices, trenches, channels, and cuts of great depth and width, and kept and continued the said dam in, upon, and across the said stream or watercourse; and the said sluices, &c. for a long space of time, to wit, from thence hitherto; and thereby, during all the time aforesaid, unlawfully and wrongfully diverted and turned divers large quantities of the water of the said stream or watercourse out of and away from the said mill and premises of the plaintiffs, and stopped, prevented, and hindered the water thereof from running or flowing along its usual course to the said mill and premises, and from supplying the same with water for the necessary working and using thereof, as the same of right ought to have, and otherwise would have done, and that by reason thereof, the water of the said stream or watercourse, sufficient for supplying the said mill and premises of the plaintiffs during all or any part of that time could not nor did run or flow to the same, as the same of right ought to have, and otherwise would have done; and the plaintiffs thereby, for the want of such sufficient water, could not use their said mill, &c. or follow, use, or exercise their trade or business therein in so large, extensive, and beneficial a manner as they might and otherwise would have done, but were thereby deprived of the use and enjoyment of their said mill, &c. and of all the profits and benefits which they might and otherwise would have gained by carrying on their business therein. The second count stated, that the defendant wrongfully and unjustly diverted and turned divers large quantities of the water of the stream out of and away from the same, and prevented the water thereof from running or flowing along its usual course to the plaintiffs' mill, and from the supplying the same with water for the necessary working thereof, and using the same as they ought to and otherwise would have done. The defendant plead ed not guilty. At the trial of the cause before Mr. Baron Wood, at the last assizes at Guildford, it appeared that the plaintiff's were the owners of copper mills, at Merton Bridge, situate on the river Wandle; and that the defendant was the owner of a silk mill, on the same river, but considerably higher up the stream. That the latter caused a dam to be put down at his expence in 1818, about a mile above the plaintiff's mills, which prevented the water from being regularly supplied to them as it was wont to do, but that the stream was not diverted in consequence, as the water returned to its regular course long before it reached the plaintiffs' mills, and that no waste of it was occasioned by the erection of the dam in question. It was also proved, that the plaintiffs had sustained an injury by the placing of the dam, as in the manufacture of copper, a regular supply of water was always necessary, as a certain heat was continually required to be kept up for the purpose of smelting, and going through the several processes necessary for that purpose; and that by the diversion of the water by the defendant a constant heat could not be kept up. For the latter it was objected, that the injury 1822. SHEARS V. WOOD. 1822. SHEARS v. WOOD. done to the plaintiffs by the erection of the dam was misdescribed in the declaration, as the regular supply of water was not diverted, but merely interrupted by such erection; and that as the water eventually ran on in its usual course to the plaintiffs' mills, it should have been stated in the declaration, that it was irregularly or insufficiently supplied, or that it did not reach the plaintiffs' mills at the proper and usual time, in consequence of the erection of the dam. The jury found a verdict for the plaintiffs, but the learned Baron reserved the point as to the sufficiency of the declaration, for the opinion of the Court. Mr. Serjeant Taddy now moved to enter a nonsuit on this ground, and submitted, that the evidence did not support the averments that the water did not flow in sufficient quantities, as it had been accustomed to do. But Mr. Justice BURROUGH observed, that it was in fact stated in the declaration, that the water did not run to the plaintiffs' mills as they were accustomed to have it. That is sufficient to shew that it did not come to them at its proper and usual times, or as it ought to have done; and it was proved, that it did not come to their mills in a sufficient quantity, as it formerly used to do. That fact was sufficient to support the plaintiffs' declaration. Besides, this is a mere technical objection, and does not go to the merits of the case; and at all events ought not to be allowed after verdict. Lord Chief Justice DALLAS and Mr. Justice PARK concurring, Rule refused (u). (a) But see Griffiths v. Marsom, 6 Price, 1, where it was held, that a count for diverting and turning a stream of water was not supported by |