of October, enclosed the bills of lading, which were filled up "with convoy;" the plaintiffs did not communicate these letters to the underwriters; and it was held a material concealment. To the same effect are M'Andrew v. Bell (a), Ratcliffe v. Shoolbred (b), Willes v. Glover. (c) Cur. adv. vult. TINDAL C. J. Upon consideration of this case, we feel great doubt as to the ground upon which the jury have given their verdict for the Plaintiff. They may have grounded their verdict upon the opinion which they formed, that the communication which the Defendant contends ought to have been made to him by the Plaintiff, was not a material communication. And if we could ascertain that this point had been distinctly found by the jury, we should not have disturbed the present verdict. But the jury may have come to their conclusion upon a different ground; namely, that, admitting the communication was material in itself, yet, that the knowledge of the facts which the Defendant had in his power from the inspection of the book in the inner room at Lloyd's, dispensed with such communication being made, and that the want of such communication could not now be set up as an answer to the action. Being, therefore, uncertain as to the real ground on which the verdict proceeded, and as the evidence now stands, being dissatisfied with the verdict, if grounded on the second point, we think the cause should go before another jury; the Defendant paying the costs of the former trial. 1832. ELTON V. LARKINS. Rule absolute. (a) 1 Esp. 373. (b) Park Ins. 290. (c) 1 N. R. 14. 1832. Jan. 31. By order of Nisi Prius, a verdict having been entered for the Plaintiff, and the Plaintiff having by the order agreed to pay the Defendant 70%, the Court allowed that sum to be set off against the Plaintiff's judgment. AUGUSTUS NEWTON V. CAMILLA NEWTON. BY order of Nisi Prius, it was ordered, with the consent of all parties, their counsel and attornies, that a verdict should be entered for the Plaintiff, damages 1s., costs 40s., and that the Plaintiff should pay to the Defendant the sum of 70l., if the Defendant should state in writing that such sum was due from him to her, and should make an order for the payment thereof; and that either party should be at liberty to make the order a rule of Court. The Defendant afterwards addressed the following order to the Plaintiff: "Sir, I hereby request you to pay to my agents, Messrs. Alexander, the sum of 70l., which is due from you to me. Camilla Newton." Alexander went to the Plaintiff to demand the money, and read to him the order of Nisi Prius, when the Plaintiff said it was right, and that he thought the 70%. had been settled long ago by being set off against the Plaintiff's costs in the action; that he was not prepared to pay, but would instruct his solicitor, if he saw no objection, to allow the set-off. Upon affidavit of these facts, Merewether Serjt. moved to set off the 70l. against the Plaintiff's taxed costs. Wilde Serjt., who shewed cause, contended that the sum claimed by the Defendant was no more than a simple contract debt, and, therefore, could not be set off against a judgment. Philipson v. Caldwell. (a) Merewether. The debt claimed by the Defendant having accrued under an order of Nisi Prius, is analogous to and stands in the same degree as a judgment debt. But the Plaintiff, by consenting to pay under the order of Nisi Prius, has in effect agreed to the set-off. TINDAL C.J. The conclusion to which the Court comes, is on the construction of one instrument. This is not the case of setting off a simple contract debt against a judgment. But by an order of Nisi Prius, which is almost equivalent to a judgment, the Plaintiff agrees to pay a certain sum to the Defendant; and the Court will supply what is a mere matter of form, the means of giving effect to that agreement. Rule absolute. 1832. NEWTON V. NEWTON. (a) 6 Taunt. 176. 1832. Jan. 30. for nuisance to a public canal navigation esta (IN THE EXCHEQUER CHAMBER.) TRAFFORD and Others v. The KING. On indictment INDICTMENT for a nuisance. The first count stated, that after the passing of a certain statute of the 2 G. 3., viz. in 1763, a canal was made pursuant to the said statute, which from that time had been used by all the king's subjects with vessels not exceeding thirty tons burden, on payment of certain reasonable tolls; that the canal, by means of an aqueduct made pursuant to the act, passed over the river Mersey, near the junction of a brook called Chorlton Brook; and that the Defendants, on the 1st of January 1770, and on other blished by act of parliament, it was found by a special verdict, among other things, that the canal was carried across a river and the adjoining valley by means of an aqueduct and an embankment, in which were several arches and culverts; that a brook fell into the river above its point of intersection with the canal, and that in times of flood the water, which was then penned back into the brook, overflowed its banks, and was carried, by the natural level of the country, to the above mentioned arches, and through them to the river, doing, however, much mischief to the lands over which it passed; that except for the fenders after mentioned, the arches in the aqueduct would be sufficiently wide for the passage of the river at all times but those of high flood, notwithstanding the improved drainage of the country, which had increased the body of water; that the Defendants, occupiers of lands adjoining the river and brook, had, subsequently to the making of the canal, aqueduct, and embankment, heightened certain artificial banks, called fenders, constructed from time to time, as occasion required, on their respective properties, for the protection of their lands, so as to prevent the flood-water from escaping as above mentioned, and that the water had consequently, in time of flood, come down in so large a body against the aqueduct and canal banks, as to endanger them and obstruct the navigation; that the fenders were not unnecessarily high, and that if they were reduced, many hundred acres of land would again be exposed to inundation: Held, that to enable the Court to come to any decision between the parties, it ought also to have been found, -I. Whether the raising fenders was an ancient and rightful usage, or whether it had commenced since the construction of the canal ; 2. Whether the course described by the special verdict to have been taken by the flood-water was, or was not, the ancient and rightful course; and, 3. Whether or not the raising of the fenders to their present height had become necessary in consequence of the construction of the aqueduct. days, 1832. TRAFFORD V. days, raised divers mounds, &c. near the ancient banks of the said river and brook, viz. in parts thereof near the said aqueduct, and severally continued the same so raised, &c., whereby water was at divers times forced The KING. against the said aqueduct, and the sides and foundations thereof, and the sides and foundations of the said canal adjacent thereto, which water ought to have flowed, and, but for the said mounds, would have flowed and escaped by other ways, viz. over parts of the banks of the river and brook: by which means the said aqueduct, and the sides and foundations thereof, and of the canal adjoining thereto, had been injured, and were placed in danger of being broken down and destroyed, to the damage and common nuisance of the subjects using the said canal, and of the inhabitants and occupiers of the lands adjacent, &c. There were other counts, charging the Defendants with severally raising and erecting the mounds, &c., and wrongfully continuing mounds, &c. theretofore injuriously erected. One count stated the injury to be done by confining the water, and causing it to break down the banks of the river and damage the adjacent lands, as well as the aqueduct and canal. Plea, not guilty. At the trial before Bayley J., at the Summer assizes for the county of Lancaster 1829, the jury acquitted some of the Defendants, and, as to others, found a special verdict, stating the following facts: In 1763 the navigable canal mentioned in the indictment was made from Longford Bridge in the township of Stretford, to the river Mersey, at a place called the Hemp Stones in the township of Halton, in pursuance of an act of the 2 G. 3. c. 11., enabling the then Duke of Bridgwater to make the same; and the king's subjects, ever since the making of the canal, have navigated it with boats not exceeding thirty tons burden, at their free will and pleasure, paying the duty by law established. The canal extends for half a mile north and south across a vale through which the river Mersey runs in a westerly VOL. VIII. direction; P |