tive nomination papers, and arranged alphabetically in the order of their surmames, and (if there are two or more candidates with the same surname) of their other names." By sect. 13 of the Ballot Act" no election shall be declared invalid by reason of a non-compliance with the rules, if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of the Act." The petitioner and the respondent P. were both candidates for the office of councillors. The petitioner's name appeared twice on the burgess roll (there being no other person of the same names on such roll) under two different descriptions, and he was nominated under both such descriptions, first with his consent, as C. E. N., of B. street, Barnstaple gentleman, and afterwards, without his consent, as C. E. N., of S. street, Bishops Tawton, land agent. The respondent G. being the returning officer, entered the name of the petitioner twice in the ballot papers, once in respect of each nomination; 71 voters put marks against his name under the one nomination, and 301 voters put marks against his name in the other. By adding the two sets of votes together the petitioner had a majority over the respondent P., otherwise not. Held, that there had not been such non-compliance with the rules of the Ballot Act as to invalidate the election of the petitioner, and that the petitioner was entitled to be returned. Such provisions of the Ballot Act as confine objections to the nomination paper to a period preceding the taking of the poll, do not apply to municipal elections, which are to be conducted, as respects nomination, according to the Municipal Election Acts ...page 602

PARLIAMENTARY.

...

Costs, taxation of-Election petition-Instructions for brief -Lump sum allowed-Discretion of master-Adjudication upon items.-In taxing the costs of the respondent to an election petit on, the master may allow a lump sum under the head of instructions for brief. The solicitor of one of the respondents to the B. Election petition had, with six other persons, been engaged for more than six days in visiting 238 persons alleged, on the part of the petitioners, to have been bribed. Having before him an affidavit to that effect, the particulars delivered by the petitioners, and the brief of the respondent's counsel, the master, upon reviewing a former taxation, pursuant to an order of Amphlett, B., allowed the lump sum of 2001., under the head "Instructions for brief," being the same sum as he had allowed under the same head upon such former taxation. Held, that the master's discretion ought not to be interfered with, and a rule that he should further review his taxation discharged

EMBEZZLEMENT.

Servant of the Crown-Policeman employed to receive contributions under Reformatory and Industrial Schools Acts (24 & 25 Vict, c. 96, s. 70; 29 & 30 Vict. cc. 117, 118). A., an inspector of prisons, duly authorised to receive the contributions of parents towards the maintenance of their children committed to reformatory and industrial schools under 29 & 30 Vict. cc. 117, 118, and instructed to pay the amount received into the Bank of England, to the credit of the Paymaster-General, employed the prisoner, a member of the police force of the borough of L., as his agent in taking proceedings against the parents of such children for the recovery of such contributions on A.'s behalf, and for generally carrying out the provisions of the Reformatory and Industrial Schools Act. Under this employment the prisoner received and misappropriated moneys, the contributions of parents, ordered by magistrates to be paid for the maintenance of their children in the schools. Held, that the prisoner was, while so employed, in the public service of Her Majesty, so as to render him amenable to indictment for embezzlement under 24 & 25 Vict. 96, s. 70

ENTERTAINMENT.

(See Place of Entertainment.)

EQUITABLE ASSIGNMENT.

(See Bankers.)

EQUITABLE MORTGAGEE. (See Company.)

...

EQUITY TO A SETTLEMENT. (See Separation Deed.)

ERROR, WRIT OF.

Criminal case-Whether of right or of grace-Fiat of the Attorney-General - Condition precedent. Although a writ of error 18, in cases of misdemeanor, ex debito justitiæ, and not, as in cases of treason and felony, ex gratiá, yet the fist of the Attorney-General is a condition precedent to the issuing of such writ, and the granting or refusing of such fat is a matter entirely within the discretion of the Attorney-General, in the exercise of which discretion he cannot be controlled by the court. Accordingly, therefore, an action by a convicted misdemeanant against the Clerk of the Petty Bag, for refusing to seal a writ of error

160

38

Detinue for policy on deceased's life-Gift of policy by deceased to defendant-Conversations with deceased relative to-Admissibility of-Statements against and in favour of the speaker's interest.-At the trial before Cleasby, B., of an action of detinue by the plaintiff, as administratrix of her deceased husband, for the recovery of a policy of insurance effected by him on his own life, evidence was tendered by the defendants and admitted, that the policy had been given by the deceased in his lifetime to his mother, the defendant R., accompanied with words to the effect that it was given to her for her own use and benefit; and evidence of other conversations of the deceased to the same effect was also tendered by the defendant and admitted. The plaintiff, who questioned the truth of this evidence, tendered evidence of conversations between herself and her deceased husband, tending to show that the deceased intended the policy as a provision for his wife (the plaintiff) or at all events that she should share in the produce and benefit of it, but this evidence was rejected by the learned judge as inadmissible. Held by the Court of Exchequer (Kelly, C.B., and Pollock, Amphlett, and Cleasby, BB.), that, assuming the policy to have been given to the defendant as alleged and proved by her at the trial, it was no longer the property of the deceased, and any words of his tending to derogate from the validity of the gift were clearly not admissible in evidence, and therefore the evidence tendered by the plaintiff to that effect was rightly rejected, on the ground that the conversations in question were statements of the deceased in his own favour; and that, for the converse reason, the evidence of the defendant, objected to by the plaintiff, was rightly received, as being admissions of the deceased against his own interests.

428

Written contract-Previous parol promise-Admissibility
of evidence.-Where a written contract has been executed,
containing all the terms agreed upon between the parties.
A previous parol promise relating to the same subject
matter is invalid. Defendant let a house and furniture to
plaintiff by a written agreement; evidence of a previous
parol promise by defendant to put in more furniture was
tendered at the trial and rejected Held, that the rejec-
tion was right, and a rule to set aside a nonsuit refused, 320
EXAMINATION BEFORE MASTER.
(See Practice: Common Law.)

EXECUTION CREDITOR.
(See Bankruptcy.)
FALSE PRETENCES.
(See Criminal Law-Evidence.)
FALSE REPRESENTATION.
(See Company.)

FELLOW SERVANT.
(See Negligence.)

FINES AND RECOVERIES ACT.

Disentailing deed-Protector-Consent of-" Under the same settlement "-Tenant for life not under the same settlement-When consent not necessary-Object of the 125

statute...

...

FIRE.

Owner of lands and buildings-Occupier of land-Haystack -Expense of fire engine-The Towns Police Clauses Act 1847 (10 & 11 Vict. c. 89), s. 33. The respondent was owner of a haystack, which caught on fire and was entirely consumed. During the burning a fire engine was sent for from the neighbouring town, and played upon the fire until the water supply was exhausted. Held, that the respondent was liable for the expense of the engine's attendance, as "the owner of the lands and buildings where such fire shall have happened," under 10 and 11 Vict. c. 89, s. 33, if he was occupier of the land on which the baystack stood; but not if he was merely permitted to keep the haystack on the ground where he had lately purchased it

Metropolitan Gas Companies-Incorporation of repealed provisions-Supply of gas under pressure.-The appellants were constituted by the Commercial Gas Act 1852, which incorporated the Gasworks Clauses Act 1847. The Metropolis Gas Act 1860 relates to the appellants, and applies the Act of 1847 to them as fully as if their gasworks were authorised by that Act. The Gasworks Clauses Act 1871 provides by sect. 1 that it shall be construed as one Act with the Act of 1847, and that its provisions shall be held to repeal and supersede such of the provisions of that Act as are inconsistent with it. By sect. 3 the provisions of the Act are to apply to every gas undertaking authorised by any special Act hereinafter passed. By ss. 11 & 36 a penalty is imposed whenever a company neglect or refuse to give a supply of gas to any owner or occupier under such pressure as is prescribed. The appellants were convicted for breach of these last sections in respect of a total discontinuance of supply of gas to a customer. Held upon a case stated, that the Metropolis Gas Companies mentioned in the Act of 1860 are subject to the provisions of the Gasworks Clauses Act 1871; and that upon the facts the conviction was right GENERAL AVERAGE.

...

Gift to a stranger-Presumption of intention-Resulting trust-Locus parentis.-S. B., widow, at various times between the years 1813 and 1850, purchased sums of stock in the name of the defendant Pascoe, who was the son by a second marriage of the widow of a deceased son of S. B., and transferred other sums of stock into the names of herself and Pascoe. S. B. died in 1850, having appointed Pascoe and a gentleman named Thompson executors and trustees of her will. A bill was filed by parties interested under the will against Pascoe and Thompson, and prayed a declaration that the sums of stock belonged to the testatrix's estate, and consequential relief. Pascoe, by his answer, stated that the testatrix always took as much interest in him as she could have done if he had been her own child, and that her intention in making the investments of stock in the joint names of herself and Pascoe was that the stock should at her death become absolutely his property, and he claimed to be absolutely entitled to the stock for his own benefit. Held (reversing the decision of the Master of the Rolls), that the evidence in favour of gift and against trust was absolutely conclusive. Where evidence to rebut the presumption of a resulting trust is adduced, the court is put in the position of a jury, and must consider all the circumstances and weigh the probability of the presumption, and such evidence cannot be disregarded when brought forward by a person in support of that which is his indisputably at law, and of which he is sought to be deprived. The selection of particular persons as the sole or principal objects of a testator's bounty, accompanied by acts and expressions about adoption in a quasiparental sense, is not sufficient to place the testator in loco parentis to such persons, so as to raise the question of ademption in respect of gifts made after the date of the will...

...

545

Heirlooms-Interest conferred-Testatrix bequeathed personal chattels to A., with a direction that they should be deemed heirlooms in the family, and be enjoyed by the person for the time being bearing the title of Baron I. A., the then holder of the title, died before the testatrix, and was succeeded by B., who survived the testatrix: Held, that the gift to A. did not confer more than a life interest in the chattels, which, accordingly, after the death of the testatrix, belonged to B., either for life or absolutely. The above-mentioned gift was followed by one of other personal chattels to the "said Baron I.," without any direction as to their being considered heirlooms. Held, that this was an absolute gift to A., and lapsed by his death...

...

...

GIFT INTER VIVOS.

Policy on life-Evidence of gift.

(See Evidence.)
GOODWILL.

(See Landlord and Tenant.)

GOVERNMENT LOAN. (See Negotiable Instrument.)

GRANT OF LAND.

...page 4

Reservation of mines-Injury to surface-CompensationInjunction.-W. S., the predecessor in title of the defendants, by an indenture, dated 31st Dec. 1861, conveyed a piece of land to a company from which the plaintiff took with the following reservation: "Except and always reserved out of these presents and the direction, appointment, grant, and conveyance hereby made unto the said W. S., his appointees, heirs, and assigns, all mines, veins, and seams of coal, cannel and ironstone, and other mines and minerals, lying within or under the said piece of land hereby appointed, granted, and conveyed, or any part or parts thereof respectively, with full liberty power and authority for the said W. S., his appointees, heirs, and assigns, and his, their or any of their lessees, agents, and workmen, and every or any other person or persons, by his, their, or any of their, order or permission, at any time or times, and from time to time to search for, get, win, take, cart, and carry away the same, and sell or convert to his or their own use the said excepted mines, veins, and seams of coal, cannel and ironstone, and other mines and minerals, or any of them, or any part or parts thereof at pleasure, and to do all things necessary for effectuating all or any of the aforesaid purposes, but without entering upon the surface of the said premises, or any part thereof, so that compensation in money be made by him or them, for all damage that shall be done to the erections on the said plot by the exercise of any of the said excepted liberties, or in consequence thereof." The deed also contained covenants by the company for erecting and maintaining a cotton mill upon the piece of land. On a bill to restrain the defendants from working the minerals under the piece of land in such a manner as to cause an injury to the plaintiff: Held (affirming the decision of the Master of the Rolls), that on the construction of the grant it was intended that the grant should reserve the right to work the mineral, although such workings should injure and damage the buildings erected on the surface of the land, the grantee being entitled to compensation only. The bill was dismissed with costs, without prejudice to an action at law for damages. 415.

GUARANTEE. (See Contract.) GUARDIANS.

Poor law-Negligent drawing of cheques. (See Banker and Customer.)

HEIRLOOMS. (See Gift.)

HIGHWAYS.

Bridge over a railway-Duty to repair roadway-Company's liability. By sect. 68 of 6 Will. 4, c. lxxv., all bridges to be constructed by the defendants, either under or over the said railway, shall be maintained and kept in repair by and at the expense of the defendants. Held, on demurrer to a return to a mandamus, that this included the duty to keep in repair the roadway of a bridge constructed over the defendants' line, although that roadway had always been maintained and repaired by the inhabitants of the parish. 858 (See Landlord and Tenant.)

Communication with sewer-Liability of Local Board.Within the defendants' district, an iron grid, through which the surface water of the road ran into a sewer, was left for six months with two bars broken. The plaintiff's horse when going along the road put his leg through and was injured. The sewer was vested in the defendants under sect. 43, and the road under sect. 68 of the Public Health Act, 1848. Held that, even if this were non-repair of the highway for which the defendants could not be sued, they were, at all events, jointly liable for the state of the grid, as the sewer authority, so as to justify the verdict for the plaintiff ... 46

HIGHWAY RATES. Exemption-Immemorial non-payment-No proof of existence of highways.-The appellant was occupier of a farm forming part of a township, and claimed exemption from the highway rates of the township. It was proved that the owners and occupiers had never in the memory of man paid highway rates, or done team work, or paid any composition in lieu thereof in respect of this farm; and that this farm from the time of Domesday book had been a known district and included lands and premises of different persons; but it was not proved that any highways had ever existed in the district. Held, Lush, J., dissenting, that this was not sufficient to establish the existence of an immemorial usage to charge this district with repair of its own highways, and to exempt it from contribution to the repairs of the highways without its limits ...page 769

HOUSE.

(See Notice to Treat.)

HUSBAND AND WIFE.

Wife's chose in action-Reduction into possession-Death of husband and wife by shipwreck-Survivorship.-Previously to her marriage with M., E. was the owner of a fund standing in the name of her late husband, in the books of a firm who had acted as her late husband's bankers. After the marriage the account was headed "Captain and Mrs. M." There was no evidence to show on whose authority the transfer of the account was made. Both the husband and wife drew upon the interest of the fund. The husband and wife perished by shipwreck. There was no evidence as to whether the husband survived the wife or not. The husband had purported to bequeath the fund by will: Held, that the fund belonged to the wife's representatives, there not being sufficient evidence that the husband had reduced it into possession, and it being impossible to prove that the husband was the survivor

(See Married Woman-Will.)

IMAGES.

(See Ecclesiastical Law.)

IMPROVEMENTS.

(See Agreement for Lease.)

INDEMNITY.

Delivery of goods of third party at request of defendantClaim of third party made good against plaintiffWhether implied indemnity of plaintiff by defendant.Where goods are claimed from A. by both B. and C., and A. delivers them to B. at his request, A. may recover from B. for loss sustained by C. having made his claim good. The plaintiffs, being colliery owners, had in their possession certain coal trucks, sent to them by P., a customer, in the way of business. P. filed a petition for liquidation. The K. company claimed the trucks both before and after the date of the petition, as bought by them of P.; the defendant claimed them as the trustee of P. in liquidation. The plaintiffs, who had notice of both claims, sent the trucks to the defendant, who had notice of the claim of the K. company, in compliance with the written order of the defendant. The K. company sued the plaintiffs in an action which the plaintiffs, acting reasonably, settled by payment of the full demands of the K. company. Held, that there was evidence that the defendant had impliedly contracted to indemnify the plaintiffs, so as to entitle the plaintiffs to recover from the defendant the amount paid by them to the K. company in settlement of the action, and a rule to set aside a verdict entered for the plaintiffs for such amount discharged.

Breach

(See Stock Exchange.)

INDUSTRIAL SCHOOL.

(See Poor Rate.)

INFANT.

(See Bankruptcy.)

(See Practice: Equity-Shares).

INJUNCTION.

of covenant-Continuing trespass-21 & 22 Viet., c. 27-Opera stalls and boxes.-A. was sub-lessee of stalls and boxes in a theatre, with free admission at all performances except balls and masquerades, and with a covenant for quiet enjoyment. The lessor was lessee under the Crown of the whole of the theatre for a long term of years, and was under a covenant with the freeholder not to convert the theatre to any but theatrical purposes. The lessor, however, agreed to let the whole of the building to persons other than A. for the purposes of holding religious meetings, and these persons took possession of the theatre, and boarded over the site of A.'s stalls, and took down the partition between the boxes which had been constructed on the sites of those originally leased to A. Upon motion to restrain A.'s lessor and the persons in possession of the theatre from

140

155

Mandatory-Delay-Damages-Lord Cairns' Act.-A. and B. were the owners and occupiers of adjoining houses, having yards behind separated by a party wall. A. had buildings of two stories in height built in his yard, with windows about eight feet from the party wall, and facing in the direction of B.'s yarn; the rooms on the ground floor were used as kitchens, &c., and the room on the first floor was used as a workroom. A.'s lights had been enjoyed since the year 1829. B. commenced to erect buildings in his yard, and to raise the party wall along the whole length of the yard. A. threatened B. with legal proceedings, but B. completed his buildings. A. filed his bill praying for a mandatory injunction. B. contended that although this was a case for an injunction, there having been delay on the part of the plaintiff, the court would not grant a mandatory injunction, but give damages under Lord Cairns' Act. Held, that A. was entitled to a mandatory injunction. There is no reason why the court should hesitate to grant a mandatory injunction in a proper case...

(See Building Agreement-Trespass). Proceedings in Probate Court-Jurisdiction-Undertaking not to question validity of will-Implied covenant.-On the death of A., his will, which shortly before his death he stated he had made, could not be found, but a draft of it was found, by which it appeared that he had left all his property to B. absolutely. A deed of arrangement was then entered into between B., and the heir-at-law and two of the next of kin of A., by which A.'s disposition of his property, as disclosed by the draft will, was confirmed. The next of kin who were parties to the deed of arrangement afterwards commenced proceedings in the Court of Probate to obtain a grant of letters of administration to the estate of A., as though he had died intestate. Held (reversing the decision of Bacon, V.C.) that, though the Court of Chancery has jurisdiction to restrain proceedings in the Court of Probate where the parties sought to be restrained have contracted not to take such proceedings, no injunction could be granted, as the deed of arrangement contained no agreement, express or implied, not to take proceedings in the Court of Probate

INNKEEPER.
(See Lien.)

INSANE PRISONER.
(See Poor Law.)

INSPECTION OF DOCUMENTS.

.787

... 441

Per

Libel-14 & 15 Vict. c. 99, s. 6-17 & 18 Vict. c. 125 (C. L. P. Act 1854), ss. 50 and 51-Practice.-On an application for the inspection of documents under sect. 6 of 14 & 15 Vict. c. 99, the power of the courts of common law is limited by the practice of the courts of equity, and an order for inspection of a document cannot be made under that section where, if a bill had been filed for its discovery, the bill would have been demurrable. But where the order for inspection follows the affidavit of the party answering the order for discovery resulting from an application for discovery made in the manner pointed out by sect. 50 of the C. L. P. Act 1854, the power of the courts of common law is not so limited. Sect. 6 of 14 & 15 Vict. c. 99 is not altered or extended in its import by ss. 50 and 51 of C. L. P. Act. 1854. Lord Coleridge, C.J., and Grove, J. (dissentiente Brett, J.) Per Brett, J.-An application for inspection of documents at chambers may be taken to be made under any legal power which the judge has to grant the application; and reading together sect. 6 of 14 & 15 Vict. c. 99, and ss. 50 & 51 of the C. L. P. Act 1854, the court or a judge has, upon an application for inspection, power to order the discovery by inspection of any douments which are prima facie shown to be material and in support of the applicant's case, and as to which it is in the opinion of the court prima facie shown that it would be fair and just to order discovery and inspection. The mere fact that the production of the document of which inspection is sought would tend to lay the party producing it open to a criminal charge, does not make the order unfair or unjust; but the respondent, if he desire to raise this objection, must do so upon oath. In an action for libel the plaintiff sought inspection of the letter containing the alleged libel, which had been returned to the defendant at her request by the person to whom she had written it. Application was made to a judge at chambers under sect. 6 of 14 & 15 Vict. c. 99. The defendant there objected, but declined to make an affidavit of the objection that the inspection of the letter might lay her open to an indictment for libel; whereupon

...page 59

the judge made the order for inspection. Held, by the Court, Lord Coleridge, C. J., and Grove. J. (dissentiente Brett, J.), that the application being under sect. 6 of 14 & 15 Vict. c. 99, the learned judge had no power to make the order, because a court of equity would not have granted discovery where the bill must show on the face of it that the discovery of the letter would subject the defendant to criminal proceedings, and that, therefore, it was not necessary for the defendant to raise this objection at chambers upon oath. Semble, that inspection of the letter might be obtained by proceeding under sect. 50 of the C. L. P. Act 1854, upon which the judge is entitled to make any order as shall be just.... Examination of passenger by company's medical officer-Report made by, to company-When subject to inspection and when privileged.-Where, after an accident on a railway, the officials of the railway company, in the usual course of their ordinary duty, make a report to the company, whether before or after an action has been brought in respect of injuries sustained by a passenger through such accident. then such report is subject to inspection; but when a claim for compensation has been made, and the company are seeking to inform themselves, by the medical examination by their own medical officer of the state and condition of the person making the claim, then an inspection of the report made to them after such examination will not be granted, such report being a privileged document. So held by the Court of Exchequer (Bramwell, Pigott, Cleasby, and Amphlett, BB.) 233

INSURABLE INTEREST. (See Insurance: Marine.)

INSURANCE.

MARINE.

561

Assignment of policy after interest of assignor had ceased -Sale of cargo-"Shipping documents."-Where the interest of the insured has ceased before loss, a subsequent assignment of the policy is ineffectual. V. insured a cargo of linseed for a voyage, including risk of lighters; during the voyage V. sold the cargo to the plaintiffs, to be paid for in fourteen days from being ready for delivery, or at seller's option on handing shipping documents (which option was not exercised). The cargo was landed in public lighters employed by the plaintiffs, one of, which sank. After the loss V. assigned the policy to the plaintiffs. Held that the policy had not passed to the plaintiffs by the contract of sale, that V.'s interest ceased on delivery into the lighter, and, therefore, that the subsequent assignment was void, and the plaintiffs could not recover on the policy... General average as per foreign statement-Termination of voyage at an intermediate port-Place where average adjustment to be made. The plaintiff, owner of a cargo of wheat to be carried in a certain vessel from Varna to Marseilles, insured the same by a policy con taining the words "General average as per foreign statement," and a warranty that corn was to be free from average unless general. The ship was injured by strain. ing in a storm, being obliged to carry a press of canvass to avoid a lee shore; she sprang a leak, and part of the cargo was damaged by the sea water. On reaching Constan. stinople the vessel was surveyed under an order of the Supreme Consular Court, and as she needed repair the damaged cargo was sold, and the sound portion transhipped and forwarded to Marseilles. An adjustment was made also by order of the Supreme Consular Court at Constantinople, and the damage to the wheat was by the adjusters treated as general average, according to the law of France, which was in conformity also with the law and usages prevailing at Constantinople. The vessel was repaired in rather more than two months. Held (affirm. ing the judgment of the Court of Common Pleas), that the plaintiffs were entitled to recover from the underwriters for a general average loss. That the true con. struction of the policy made the underwriters liable for general average as determined by foreign and not English law, and the loss in this case though particular average by English was general average by foreign law, and so came within the terms of the policy. Secondly, the voyage was properly terminated at Constantinople, and the ad743 justment properly made there Master's power of sale-Total loss.-The master of a ship may, under certain circumstances, effect the sale of his ship so as to thereby render the underwriters liable for a total loss without notice of abandonment; but he can only do so in cases of stringent necessity-that is to say, a necessity that leaves the master no alternative, as a prudent and skilful man acting bond fide for the best interests of all concerned, and with the best and soundest judgment that can be formed under the circum. stances, but to sell the ship as she lies. If he comes to this conclusion hastily, either without sufficient examination into the actual state of the shio, or without having previously made every exertion in his power, with the means then at his disposal, to extricate her from the peril or to raise funds for her repair, he will not be justified in selling, even though the danger at the time appear exceedingly imminent

Mutual insurance association-Unincorporated and unre. gistered body-Winding-up-Association for acquisition

510

of gain-Names of underwriters specified in policy.-By the rules of a mutual insurance association it was provided that the members should severally, and respectively, and not jointly or in partnership nor the one for the other, but each only in his own name, insure each other's ships for one year from noon of any day named as the commencement of risk, subject to the conditions endorsed on the form of policy and to the rules and reguJations which should be binding on all the members of the association. The managers of the association were to be James Jackson and William Sheppard, and either of them might sign their firm name of Jackson and Sheppard to all policies of insurance in the name of the association as managers thereof, and the signature thus given by either of them should be binding and conclusive on all the members of the association, and should have on each and all of the members the same effect as if each and every member had personally sigued such policy. The annual rates on the sums insured were payable in advance by quarterly proportions by members' acceptance of the managers' draft at three months' date; or if paid in cash discount of 51. per cent. per annum was to be allowed, which was to be placed to the credit of each respective member; and if such amount exceeded the claims for losses or damage sustained by the members, such excess was to stand to the credit of each mutual member proportionately as he might have contributed, and if such contributions were not sufficient to meet the claims of members for loss or damage sustained within any respective year, then such credited amounts should be applied to meet such deficiency, and if there should still be a deficiency, such sum as might be required to meet the same should be drawn for on each respective member in such proportion as they bore to each other. The rules also provided that the managers should have authority to issue policies to members for periods less than a year or for special risks either in time or voyage policies, in consideration of special rates of premium, to which the reserve fund should in no way apply, and that the rules might be repealed, altered, or amended by a majority of the members at a general meeting. Special rate policies were issued to non-members both before and after an invalid alteration of the rules, by which it was attempted to give the managers authority to issue special rate policies to non-members. The policies issued by the association were signed "Jackson and Sheppard, joint managers per procuration of the several members of the Arthur Average Association for insuring each other's ships, every member bearing his equal proportion, according to the sums mutually insured therein, excepting members paying special rates." In Feb. 1870 the association was ordered to be wound up, and on the 25th May 1871 Cory and Hawkesley were settled on the list of contributories. By the chief clerk's certificate, dated 20th Doc. 1873, certain sums were found to be due to bolders of special policies who were nonmembers. On a call being made on Cory and Hawkesley, they took out a summons to have the debts admitted by the certificate of certain non members expunged. Held that the signature to the policies was not a specification of the names of the insurers as required by the 7th section of 30 Vict. c. 23, and that the policies were therefore invalid. Held also that the issuing of special rate policies to non-members was ultra vires, and that, notwithstanding the delay in applying to vary the chief clerk's certificate, the amounts found due to non-members must be expunged. Semble, that au unincorporated and unregistered mutual insurance association, formed since the passing of the Companies Act 1862, being an association for the acquisition of gain, cannot be wound-up under the 199th section of the Companies Act 1862 page 525, 713 Re-insurance-Insurable interest-What necessary to be stated in policy-interest in subject-matter-Fact of reinsurance Concealment-Material fact-19 Geo. 2, c. 37, 8. 4-7 & 28 Vict. c. 56, s. 1-30 & 31 Vict. c. 59.-The plaintiff, an underwriter, in effecting with another underwriter an ordinary policy on certain goods, on board a named vessel, for a specific voyage, omitted to state, as the fact was, that it was a re-insurance of a risk already insured against by the plaintiff; and the jury, in an action by him on the policy, having found that the fact of its being a re-insurance was immaterial, and that there had been no concealment, the verdict was entered for the plaintiff, with leave to the defendant to move to enter the verdict for him, on the ground that the plaintiff being only interested as a re-insurer, was not entitled to recover on the policy sued on; and it was Held by the Court of Exchequer (Bramwell, Pollock, and Amphlett, BB.), discharging the rule, that an underwriter, when he effects a policy of assurance on a risk already assured against by him, is not, in law, bound, unless challenged 10 to do, to disclose the fact of its being a re-insurance, and that the plaintiff, therefore, was entitled to re163

cover

...

"Slip"-Non-disclosure of material fact known to assured after risk accepted, but before policy issued.-On 11th March, the plaintiffs being shipowners, agreed with the defendants, being underwriters, for the insurance of freight, and a slip or proposal contai aing all the necessary terms for a complete insurance was drawn up without any question being asked as to the amount of insurance

upon the hull of the vessel, and was accepted by the defendants on the same day. On the 16th March the ship was lost, and on the 17th March the plaintiffs became aware of that loss, and sent to the defendants for a stamped policy in pursuance of the terms of the slip, and then for the first time the defendants inquired to what amount the hall of the ship had been insured. The plaintiff's clerk gave the required information, and a stamped policy, with the amount insured on the slip inserted in it as a warranty, was delivered to the plaintiffs. No communication was made by the plaintiffs to the defendants of the loss of the ship before or at the time of the delivery of the policy. The plaintiffs having sued upon the policy, the jury found that the risk was accepted by the defendants on 11th March, and that it was not material to make known the loss to the defendants upon 17th March, whereupon a verdict was entered for the plaintiffs. The Court of Common Pleas discharged a rule to enter a verdict for the defendants, obtained on the ground that the judge ought to have directed the jury as a matter of law that the omission to communicate the loss on 17th March was a concealment of a material fact which avoided the policy. Held (affirming the judgment of the court below), that the judge had not misdirected the jury. and that the addition in the policy on 17th March of a term for the benefit of the underwriter, and not affecting the risk insured, did not prevent the policy from being one drawn up in respect of the risk accepted on the 11th March. Cory v Paton (26 L. T. Rep. N.S. 161; L. Rep. 7 Q. B. 304), followed.

INTEREST.

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Claim under 3 & 4 Will. 4, c. 42, sect. 28-What sufficient demand of payment to support-Whether specific sum must be claimed-Pleading.-For a jury to allow interest upon a debt it is not necessary that the demand of payment should have specified the exact amount of such debt. By 3 & 4 Will 4, c. 42, s. 28, the jury may allow interest upon al debts payable otherwise than at a time certain "from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment." The defendant was indebted to the plaintiff in a large amount not payable at a time certain. In Oct. 1872, the plaintiff wrote to the defendant asking for "a good round sum," and giving notice that he would charge the defendant interest on whatever sum might be due to him on the 1st Nov. In Oct. 1873, the plaintiff again wrote, stating that the defendant owed him over £1100 for balance of account and interest, and threatening legal proceedings if the account should not be settled by 1st Nov. The amount remaining unpaid, the plaintiff sued for it; whereupon the defendant pleaded never indebted as to interest, and in respect of the principal paid into court, a sum which the plaintiff accepted, at the same time joining issue on the plea of The plaintiff having been nonsuited: never indebted. Held that the replication might be amended; that the letter of Oct. 1873 was a good demand within the statute; and a rule to set aside the nonsuit and enter a verdict for the plaintiff as from Oct. 1873 made absolute. Semble that, assuming the letter of Oct. 1872 was a demand of payment at all, such letter also was a good demand within the statute Sum payable at a certain time.-Interest may be allowed under 3 & 4 Will 4, c. 42, s. 28, on money payable by virtue of a written instrument, if such instrument specifies the event on which payment is to be made, and the time of which can be afterwards ascertained, though the day of payment is not specified. Plaintiff, by letter, offered to do work for defendants, payment to be onethird in cash, remainder by bills. The work was done and accepted, but not paid for until some time after. Held by Mellor and Lush, JJ. (Blackburn J. dissenting) that the plaintiff could recover interest on the amount which ought to have been paid by cash...

INTERPLEADER.

(See Bankruptcy.)

INTERROGATORIES.

863

secretary to answer further, that C. and P. should be orally examined, and produce all documents in their possession having reference to the motion, and that the dec.sion in the motion should stand over until the result of such oral examination should be ascertained... ...page 828 Particulars of sale. - In an action Patent apparatus brought upon an indenture licensing the defendants to manufacture certain gates upon a patented principle, in which the defendants covenanted to pay certain royalties upon all gates manufactured by them according to the said principle, and to deliver quarterly statements of the gates so manufactured by them to the plaintiff, and to stamp the gates so manufactured by them, and not to sell any gates so manufactured by them below certain specified prices, the court refused to allow interrogatories to be administered to the defendants, asking the number of gates constructed by the defendants wherein the apparatus for closing or opening the gates acted simultaneously upon signals. The patent being one for an improved apparatus for closing and opening gates acting simultaneously upon signals, there being other methods besides the patented one of constructing gates so acting, and it being denied by the defendants that they had broken their covenants, interrogatories as to prices of gates sold were also disallowed, it not appearing that the plaintiff relied upon this as a substantial cause of action... Practice.-When money has been paid into court by the defendant in an action to recover damages for personal injuries caused by the defendants' negligence, interrogatories as to the nature and extent of the injuries 312 sustained, and generally as to the damages, are permissible

JUSTICES.

Contagious Diseases (Animals) Act 1869-Sending cattle by railway without water.-Justices have jurisdiction to convict for sending cattle by railway without requesting the company to supply water, so that the cattle remain without water more than thirty consecutive hours, contrary to 32 & 33 Vict. s. 70, s. 61. Appellant sent cattle from K. to C. without making such request as above mentioned, whereby they were without water more than thirty consecutive hours; the thirty hours expired before they arrived at C. Held, that the borough justices of C. could not convict, as the offence was completed out of their jurisdiction. Sect. 109 does not enable justices to deal with such a case unless the party is within their jurisdiction when summoned.

731

725

Jervis's Act (11 & 12 Vict. c. 43), ss. 1, 2-Service of summons-Hearing of information" ex parte"-Certiorari to quash conviction.-By 11 & 12 Vict. c. 43, s. 2, if a summons is proved to have been duly served a reasonable time before the time for appearance, and is disobeyed, the justices may hear the case ex parte": Held, that to give the justices jurisdiction to hear the case "ex parte," the circumstances should be such as to lead to the conclusion that the summons was brought to the knowledge of the defendant. By sect. 1 a summons may be served on a defendant by leaving it with some person for him at his last Per Quain, J.-The nature or most usual place of abode. of the summons must be explained to the person with whom it is left. W. S. was convicted of assault before two justices in his absence on the 12th March, on proof that a summons had been left at his mother's house on the 10th. He was at sea, pursuing his vocation as a fisherman, from the 9th to the 13th, and did not know of the summons until after his conviction: Held, that the justices had acted without jurisdiction, and a rule for a certiorari to bring up and quash the conviction made absolute. Re Williams (21 L. J. 46, M.C.; 2 L. M. & P. 581) distinguished 394

LANDLORD AND TENANT.

Agreement to repair and furnish a house-Tenancy commenced-Consideration-Collateral to an agreement concerning land-4th section of the Statute of Frauds.-The plaintiff sued upon an agreement, before the making of which he and the defendant bad been negotiating concerning his tenancy of the defendant's house furnished. The plaintiff had objected to become tenant on the terms proposed on the ground that the house wanted repairs, and the furniture was insufficient; the defendant then in order to induce, as he in fact thereby did induce, the plaintiff to become forthwith tenant upon the sai terms without requiring the plaintiff to do any repairs or add any furniture previously to the commencement and creation of such tenancy, verbally promised the plaintiff within a reasonable time after the tenancy commenced to do the repairs and add the furniture required; and thereupon afterwards, in consideration that the plaintiff at the request of the defendant had so forthwith as aforesaid become tenant to the defendant, the defendant promised that he would within a reasonable time do the repairs and add the furniture required. The plaintiff averred the performance of all conditions precedent, and that the defendant would not at all perform his last mentioned promise. Held, upon demurrer to the declaration, that the agreement sued upon was collateral to that concerning the tenancy; that the consideration was good, and the agreement not being within the 4th section of the Statute of Frauds, need not be in writing