Reports of Cases Argued and Determined in the English Courts of Common Law

mined, was opposed by B., a creditor, and remanded to a future day. Before that day arrived, C., who acted as the attorney of A., in consideration of B.'s withdrawing his opposition from A., undertook that A. should be the sole assignee of B.'s estate, and should receive 1007. out of the insolvent's estate within three weeks from his appointment: Held, that this agreement was contrary to the policy of the insolvent act, and therefore void. Murray v. Reeves, Gent., One, &c., T. 9 G. 4. 421

INSURANCE.

1. A vessel insured from Sierra Leone to London, and upon which the insurance was to endure until she had been moored in good safety twenty-four hours, arrived in the evening of the 18th of February, and the captain having orders to take her into the King's Dock at Deptford, moored her near the dock-gates. On the following morning he was informed at the dock, that no order for his admittance had been received; but that if it had, the vessel could not be then admitted, on account of the quantity of ice in the river. The order was sent by the Navy Board on the 21st, but on account of the ice the ship could not be moored until the 27th, and then, in warping her towards the dock, a rope broke, she grounded and was totally lost. The jury found that the vessel remained at her moorings from the 18th to the 27th of February on account of the ice, and not for want of an order to enter the dock: Held, that upon this finding the plaintiff was entitled to recover, for that the place where the vessel was moored not being the place of her ultimate destination, the policy did not expire when she had been there in safety twentyfour hours; and as the vessel remained at those moorings on account of the ice, and not waiting for the order, the underwriters were not discharged by the delay. Samuel v. The Royal Exchange Assurance Company, E. 9 G. 4.

119

2 Where a vessel insured in a valued policy of 20007, received damage by perils of the sea, which could have heen repaired for 1450, but the jury found that the vessel was not worth repairing: Held, that this was a total loss, and the assured were entitled to recover the sum at which the vessel was valued in the policy. Allen v. Sugrue, M. 9 G. 4.

561

3. It is the duty of a party effecting an insurance on life or property to communicate to the underwriters all material facts within his knowledge, touching the subjectmatter of the insurance; and it is a question for the jury whether any particular fact was or was not material. Lindenau v. Desborough, M. 9 G. 4. 586

JOINT STOCK COMPANY. A member of a joint-stock company was employed by the company as their agent to sell goods for them, and received a commission of two per cent. for his trouble, and one per cent. del credere for guaranteeing the

purchaser. Having sold goods on account of the company, he drew on the purchaser a bill of exchange, payable to his, the drawer's own order, and after it had been accepted, he indorsed it to the actuary of the company, and the latter indorsed it to another member, who was the managing director, and who purchased goods for the company: the company were then indebted to him in a larger amount than the sum mentioned in the bill. The acceptor having become insolvent before the bill became due, the drawer received from him 10s. in the pound upon the amount of the bill by way of composition: Held, first, that the indorsee, being a member of the company, could not sue the drawer on the bill, inasmuch as it was drawn by the latter on account of the company; and that he could not recover the sum received by the drawer on the bill, because that money must be taken to have been received by him in his character of a member of the company, and not on his own account. Teague v. Hubbard, T. 9 G.

JUDGE'S CERTIFICATE. See WELSH JUDICATURE ACT.

JUDGMENT.

See TRESPASS, 3.

JURISDICTION.

See JUSTICES, 6. PRACTICE, 1, 13.

JUROR.

345

1. An order of justices made under the 5 G. 4, c. 71, stated, "that the justices, after due examination had on oath, having adjudged the legal place of settlement of a pauper lunatic confined in a lunatic asylum, to be in M., did thereby require the churchwardens and overseers of M. to pay to the treasurer of the lunatic asylum 10. 16s. due for twenty-four weeks' maintenance, &c., being at the rate of 9s. per week, and to pay the same weekly sum during so long a time as the pauper should remain therein." The parish of M. appealed against this order, and in their notice of appeal described it as an order of settlement and maintenance: Held, that as the parish of M. had treated this as the order of settlement, it must be presumed that there was no other order, and therefore the words "having adjudged,' must be understood as words of present adjudication, and that the order was good in this respect: Held, secondly, that so much

of the order as was retrospective was bad, but that it was good for the residue. Rex v. The Inhabitants of Maulden, E. 9 G. 4.

2. The 17 G. 2, c. 38, s. 4, does not make it imperative on the justices to hear and determine an appeal at the sessions next following the publication of the rate, but they may adjourn it to the next sessions. Where a rate was published on the 16th of September, and the appeal was entered at the Michaelmas sessions, but the defendant did not give notice of his intention to try his appeal at those sessions, and the justices adjourned it as a matter of course to the Epiphany sessions, according to the usual practice, and the appellant gave notice of his intention to try his appeal at the Epiphany sessions, when the justices refused to hear it, on the ground that it ought to have been heard and determined at the preceding sessions; this court granted a mandamus to compel them to hear the appeal. Rex v. The Justices of Wilts, T. 9 G. 4.

380

3. An order of justices, requiring the stewards of a benefit society to readmit A. B. who had been expelled, recited, that it had appeared to the justices that the rules of the society had been enrolled at the quarter sessions. On the trial of an indictment against the stewards for disobeying such order, that recital was not evidence of the enrolment of the rules. Rex v. Gilkes and others, T. 9 G. 4. 439

593

5. By stat. 6 G. 4, c. 108, s. 3, if any vessel therein described shall be found on the high seas within 100 leagues of any part of the coast of the United Kingdom, or shall be discovered to have been within the said distance, having on board the goods therein specified, the goods and the vessel shall be forfeited. By section 49, every person who shall be found or discovered to have been on board any vessel liable to forfeiture under that act for being found or discovered! to have been within any of the distances or places mentioned in the act from the United Kingdom, shall forfeit 1007., and may be detained and taken before two justices, to be dealt with as thereinafter mentioned. By section 74, any offence against that act shall, for the purpose of prosecution, be taken to have been committed, and the penalties incurred, at the place on land in

the United Kingdom into which the person committing such offence, or incurring such penalty, shall be taken, brought, or carried; and in case such place on land is situate within any city, &c., the justices of the peace for the city, &c., as well as those for the county within which such city is situate, shall have jurisdiction to try all offences committed upon the high seas against the act. A vessel liable to forfeiture under this act was seized in a part of the river Orwell where the justices of Ipswich had jurisdiction, and a person found on board the vessel was taken to Harwich, and prosecuted before two justices of that place, who convicted him in a penalty of 1002. for having been found on the high seas on board a vessel liable to forfeiture: Hed, that the justices of Harwich, being justices at the first place on land to which the party was carried, had jurisdiction to try the offence. In the Matter of J. Nunn, M. 9 G. 4. 614

LANDLORD AND TENANT.

It was stated in a special verdict, that by an indenture A. demised to B all that wharf next the river Thames described by abutments; together with all ways, paths, passages, easements, profits, commodities, and appurtenances whatsoever to the said wharf belonging; and that by the indenture the exclusive use of the land of the river Thames, opposite to and in front of the wharf, between high and low water mark, as well when covered with water as dry, for the accommodation of the tenants of the wharf, was demised as appurtenant to the wharf, but that the land itself between high and low water mark was not demised: Held, that the meaning of this finding either was, that the land was demised as appurtenant to the wharf, and then it would be a finding that one piece of ground was appurtenant to another, which in law could not be; or that the mere use of the land passed by the indenture, and that was a mere privilege or easement, out of which rent could not issue, and consequently that the lessor could not distrain, for rent in arrear, barges, the property of B., lying in the space between high and low water mark, and attached to the wharf by ropes. Buszard and Others, Assignees, v. Capel and another, E. 9 G. 4.

141

By a memorandum of agreement, in consideration of the rent and conditions thereinafter mentioned, A. was to have, hold, and occupy, as on lease, certain premises therein specified, at a certain rent per acre. And it was stipulated that no buildings should be included or leased by virtue of the agreement; and it was further gee and stipulated, that A. should take, at the rent aforesaid, certain other parcels as the same might fall in: and, lastly, it was stipulated and conditioned, that A. should not assign, transfer, or underlet any part of the said lands and premises, otherwise than to his wife, child or children: Held, that by the last clause a condition was create

INSURANCE.

421

561

JUDGE'S CERTIFICATE. See WELSH Judicature ACT.

JUDGMENT.

See TRESPASS, 3.

JURISDICTION.

See JUSTICES, 6. PRACTICE, 1, 13.

JUROR.

345

Alienage is a ground of challenge to a juror, and if the party has an opportunity of making his challenge and neglects it, he cannot afterwards make the objection. Semble, That since the 7 G. 4, c. 60, s. 27, alienage is not a ground of challenge to a special juror. Rex v. Sutton and Others, T. 9 G. 4.

JUSTICES.

See RATE.

417

An order of justices made under the 5 G. 4, c. 71, stated, "that the justices, after due examination had on oath, having adjudged the legal place of settlement of a pauper lunatic confined in a lunatic asylum, to be in M., did thereby require the churchwardens and overseers of M. to pay to the treasurer of the lunatic asylum 10. 16s due for twenty-four weeks' maintenance, &c.. being at the rate of 9s. per week, and to pay the same weekly sum during so long a time as the pauper should remain therein." The parish of M. appealed against this order, and in their notice of appeal described it as an order of settlement and maintenance: Held, that as the parish of M. had treated this as the order of settlement, it must be presumed that there was no other order, and therefore the words "having adjudged,” must be understood as words of present adjudication, and that the order was good in this respect: Held, secondly, that so much

of the order as was retrospective was bad, but that it was good for the residue. Rex v. The Inhabitants of Maulden, E. 9 G. 4.

380 3. An order of justices, requiring the stewards of a benefit society to readmit A. B. who had been expelled, recited, that it had appeared to the justices that the rules of the society had been enrolled at the quarter sessions. On the trial of an indictment against the stewards for disobeying such order, that recital was not evidence of the enrolment of the rules. Rex v. Gilkes and others, T. 9 G. 4. 439

4. By the statute 4 G. 4, c. 95, s. 87, a right of appeal is given in certain cases, if the party gives notice within six days after the cause of complaint arises. Two justices having made an order upon the surveyors of the roads in a township, to perform a certain part of the statute-duty on a turnpike-road running through the township, and to pay to the surveyor of that road a certain part of the money received as a composition for statute-duty; Held, that the cause of complaint did not arise until a copy of the order in writing had been served, and that notice of appeal given within six days from that time was valid. Rex v. The Justices of Lancashire, M. 9 G. 4. 593 5. By stat. 6 G. 4, c. 108, s. 3, if any vessel therein described shall be found on the high seas within 100 leagues of any part of the coast of the United Kingdom, or shall be discovered to have been within the said distance, having on board the goods therein specified, the goods and the vessel shall be forfeited. By section 49, every person who shall be found or discovered to have been on board any vessel liable to forfeiture under that act for being found or discovered to have been within any of the distances or places mentioned in the act from the United Kingdom, shall forfeit 1007., and may be detained and taken before two justices, to be dealt with as thereinafter mentioned. By section 74, any offence against that act shall, for the purpose of prosecution, be taken to have been committed, and the penalties incurred, at the place on land in

the United Kingdom into which the person committing such offence, or incurring such penalty, shall be taken, brought, or carried; and in case such place on land is situate within any city, &c., the justices of the peace for the city, &c., as well as those for the county within which such city is situate, shall have jurisdiction to try all offences committed upon the high seas against the act. A vessel liable to forfeiture under this act was seized in a part of the river Orwell where the justices of Ipswich had jurisdiction, and a person found on board the vessel was taken to Harwich, and prosecuted before two justices of that place, who convicted him in a penalty of 1001. for having been found on the high seas on board a vessel liable to forfeiture: Hed, that the justices of Harwich, being justices at the first place on land to which the party was carried, had jurisdiction to try the offence. In the Matter of J. Nunn, M. 9 G. 4. 644

LANDLORD AND TENANT.

1. It was stated in a special verdict, that by an indenture A. demised to B. all that wharf next the river Thames described by abutments; together with all ways, paths, passages, easements, profits, commodities, and appurtenances whatsoever to the said wharf belonging; and that by the indenture the exclusive use of the land of the river Thames, opposite to and in front of the wharf, between high and low water mark, as well when covered with water as dry, for the accommodation of the tenants of the wharf, was demised as appurtenant to the wharf, but that the land itself between high and low water mark was not demised: Held, that the meaning of this finding either was, that the land was demised as appurtenant to the wharf, and then it would be a finding that one piece of ground was appurtenant to another, which in law could not be; or that the mere use of the land passed by the indenture, and that was a mere privilege or easement, out of which rent could not issue, and consequently that the lessor could not distrain, for rent in arrear, barges, the property of B., lying in the space between high and low water mark, and attached to the wharf by ropes. Buszard and Others, Assignees, v. Capel and another, E. 9 G. 4.

141

By a memorandum of agreement, in consideration of the rent and conditions thereinafter mentioned, A. was to have, hold, and occupy, as on lease, certain premises therein specified, at a certain rent per acre. And it was stipulated that no buildings should be included or leased by virtue of the agreement; and it was further eg eed and stipulated, that A. should take, at the rent aforesaid, certain other parcels as the same might fall in and, lastly, it was stipulated and conditioned, that A. should not assign, transfer, or underlet any part of the said lands and premises, otherwise than to his wife, child or children: Held, that by the last clause a condition was create

308

for the breach of which the lessor might maintain an ejectment. Doe on the demise of Henniker v. Watt, E. 9 G. 4. 3. A. demised to B. the first and second floor of a house for a year, at a rent payable quarterly. During a current quarter, some dispute arising between the parties, B. told A. that she would quit immediately. The latter answered she might go when she pleased. B. quitted, and A. accepted possession of the apartments: Held, that A. ould neither recover the rent, which, by virtue of the original contract, would have become due at the expiration of the current quarter; nor rent pro rata, for the actual occupation of the premises for any period short of a quarter. Grimman v. Legge, T. 9 G. 4.

324

4. Where a landlord's agent went upon the tenant's premises, walked round them, and gave a written notice that he had distrained certain goods lying there, for an arrear of rent, and that unless the rent was paid, or the goods replevied within five days, they would be appraised and sold, and then went away, not leaving any person in possession: Held, that this was a sufficient seizure to give the tenant a right of action for an excessive distress; and that quitting the premises without leaving any one in possession, was not an abandonment of the distress, the 11 G. 2, c. 19, s. 10, giving the landlord power to impound or otherwise secure on the premises goods distrained for rent in arrear. Swann v. The Earl of Falmouth, T. 9 G. 4.

456

5. A. being tenant of premises under an indenture of lease granted by B., a sequestration issued out of the Court of Chancery against the latter. A. signed the following instrument :— "I hereby attorn, and become tenant to C. and D., two of the sequestrators named in the writ of sequestration issued in the said suit in chancery, and to hold the same for such time and on such conditions as might be subsequently agreed upon: Held, that this was an agreement to become tenant, and required a stamp. Held, secondly, that the defendant, not having received possession of the premises from C. and D., might dispute their title, and that the lease not being proved to have been surrendered, was an answer to the action. Cornish v. Searell, T. 9 G. 4.

471

6. In an action founded on the statute 11 G. 2, c. 19, s. 3, against a party for aiding and assisting the tenant in the fraudulent removal of his goods, with intent to prevent the landlord from distraining them, it is incumbent on the landlord not only to prove that the defendant assisted the tenant in such fraudinot removal, but also that he was privy the fraudulent intent of the tenant.

Semble, That the statute is so far penal, that it is incumbent, in an action by the landlord against a third party for assisting the tenant in such fraudulent removal, to bring the case by strict proof within the words of the first section. Brooke v. Noakes, T. 9 G. 4.

537

LAND-TAX.

See DISTRESS, 3.

LEASE

See EJECTMENT. 3.

LIBEL.

A. having discharged his servant, and hearing that he was about to be engaged by B., wrote a letter to B., and informed him that he had discharged him for misconduct. B., in answer, desired further information. A. then wrote a second letter to B., stating the grounds on which he had discharged the servant. In an action by the servant against A., for a libel contained in this letter, it was held, that, assuming the letter to be a privileged communication, it was properly left to the jury to consider whether the second letter was written by A. bona fide, or with an intention to injure the servant. Pattison v. Jones, M. 9 G. 4.

LICENSE BY PAROL.
See RECTOR.

LIEN.

578

1. A., B. and C., together with others, were part-owners of a ship engaged in the whale fishery. The usual mode of managing the cargo was, that, on the arrival of the vessel at her homeward port, the whalebone was taken into the possession of B. and sold by him, and the proceeds were applied towards the discharge of the expenses of the ship. The blubber was deposited in a warehouse rented of C. by the owners of the ship, and the oil produced from it was then put into casks, each owner's share being weighed out and placed separately in the warehouse, in casks marked with his initials. After the division, the practice was for the warehouseman to deliver to the order of each part-owner his share of the oil,unless notice was given by the ship's husband that the part-owner's share of the disbursements had not been paid. In that case the warehouseman used to detain the oil till the ship's husband's demand had been satisfied. The ship having arrived from her voyage in 1825, the above course was followed. The share weighed out and set apart for A. was twenty-nine tons, which was stowed in the warehouse in casks, which had A.'s initials put on them. In January, 1826, A. became bankrupt: twenty tons of the oil had been delivered to A. before his bankruptcy; the remaining nine tons remained in the warehouse at the time of his bankruptcy. In January 1826, the warehouseman had orders from C., the ship's husband, not to deliver to A. the remaining oil, as his share of the disbursements of the ship had not been paid: Held, in an action of trover brought by the assignees of A. against C. for the residue of A.'s oil, that the other part-owners had originally a lien on it for his share of the disbursements of the ship; and that this right was not divested by the separation of A.'s share from the residue, and placing it in casks marked with

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Reports of Cases Argued and Determined in the English Courts of ..., Volume 15