of it being solely to the plaintiff, and in no way to be brought into the account of profit and loss. If that be so, the action will lie, and there is no ground for entering a nonsuit. The question as to misdirection remains for consideration. It was contended on the part of the defendants that it was the implied agreement of the plaintiff, as furnishing the ship, that she should be made fit to receive on board the engines; in which case the detention was for the purpose of supplying that which the plaintiff had engaged to supply, and could not be said to be caused by the defendants. If this was so there was a misdirection, and one on a point going to the whole merits. But we think that the parties, knowing that there was a doubt as to whether the engines would go on board, and that there might be difficulty and expense in shipping them, have agreed that the shippers should take on themselves all the expense and risk of putting them in and stowing them. If it should prove impossible to put them in the ship, the defendants, having taken upon themselves absolutely to do so, must pay damages for not fulfilling their contract. If there is delay or expense incurred in fulfilling it, it is incurred by the defendants. We think therefore that the ruling complained of was right, and the rule must be discharged on both grounds. Rule discharged. EX PARTE MAYOR OF BIRMINGHAM (1). (3 El. & El. 222-224; S. C. 30 L. J. Q. B. 2; 6 Jur. N. S. 1094; 3 L. T. N. S. 270; 9 W. R. 34.) The Municipal Corporations Reform Act, 5 & 6 Will. IV. c. 76, s. 57 (2), enacts "That the mayor for the time being of every borough shall be a justice of the peace of and for such borough, and shall continue to be such justice of the peace during the next succeeding year after he shall cease to be mayor;" and such mayor shall, during the time of his mayoralty, have precedence in all places within the borough: Held, that this section refers to social, not magisterial, precedence ; and therefore does not entitle a mayor, during his mayoralty, to take precedence and to preside at all meetings of the borough justices, held in the borough, at which a chairman is required. SIR W. ATHERTON, Solicitor-General, moved, on behalf of Thomas Lloyd, the mayor of the borough of Birmingham, for a rule calling on the justices of the peace for that borough to show cause why a mandamus should not issue, commanding them to permit him, as mayor for the time being, to take precedence and to preside at all meetings of the justices to be held within the borough, at which a chairman should be required. (1) Lawson v. Reynolds [1904] 1 Ch. 718, 73 L. J. Ch. 451, 90 L. T. 278. (2) Repealed, 45 & 46 Vict. c. 50, s. 5. See now ss. 15 and 155 of the Ex parte MAYOR OF BIRMING HAM. [ *223 ] The affidavits showed that in 1839 a separate commission of the peace was granted to the borough; that in 1859 the justices of the borough refused to allow the then mayor to preside at their meetings; and that, in the present year, they had refused to permit the applicant to preside, as mayor for the time being, at the Gaol Sessions, or any official meetings of the justices, and another magistrate had been voted to the chair. The Solicitor-General, for his rule: The question whether the mayor has the right of precedence which he claims, turns upon the construction to be given to the Municipal Corporations Reform Act (5 & 6 Will. IV. c. 76), s. 57 (1), which enacts "That the mayor for the time being of every borough shall be a justice of the *peace of and for such borough, and shall continue to be such justice of the peace during the next succeeding year after he shall cease to be mayor; "and such mayor shall, during the time of his mayoralty, have precedence in all places within the borough." Under this section the mayor is entitled to precedence at the meetings of the justices at which he is present as a justice, no less than in all other places at which he is present while he holds his office. There is nothing in the language of the statute to limit the meaning of precedence to social precedence. (WIGHTMAN, J.: Is there any authority for the issuing of a mandamus of the kind you ask for?) In Ex parte Farnall (2) this Court made absolute a rule for a mandamus to the directors and guardians of the parish of St. Marylebone, to admit the applicant, an inspector appointed by the Poor Law Board, to attend their meetings, in pursuance of stat. 10 & 11 Vict. c. 109, s. 20. (WIGHTMAN, J.: In that case the defendants had prevented the applicant from performing his statutory duty to attend the meetings.) Sect. 57 of the Municipal Corporations Reform Act imposes upon the mayor the duty of presiding, ex officio, over the borough justices. (WIGHTMAN, J.: The mayor may have had no previous experience as a justice; and it would be very inconvenient if an inexperienced person had the right to preside over others better qualified.) (1) See note (2), p. 675, ante. (2) Not reported. The rule nisi was obtained on 22nd May, and made absolute on 11th June, 1856, no cause being shown. COCKBURN, Ch. J.: There can be no rule. We think that the section in question. of the Act of Parliament applies only to the social, not to the magisterial, precedence of the mayor. WIGHTMAN, HILL and BLACKBURN, JJ. concurred. Ex parte MAYOR OF BIRMING HAM. [ *224 ] Rule refused. REG. v. OVERSEERS OF ST. GILES-IN-THE-FIELDS. (3 El. & El. 224-233; S. C. 30 L. J. M. C. 12; 7 Jur. N. S. 161.) On 17th October, 1854, J. R., who was then eighteen years old and living, unemancipated, with his father, T. R., in the parish of A. in the S. Union, was removed as a lunatic pauper to an asylum, where he had since continued. At that time both T. R. and J. R. had resided in A. for more than the five next preceding years. T. R. continued to reside there till 1857, when he left, and had not since returned. T. R.'s settlement, both on and since 17th October, 1854, was in the parish of G. J. R. was maintained in the asylum from that date, at the cost of the S. Union, until, it being discovered that T. R. had left A., an order of justices was, on 11th October, 1859, made under stat. 16 & 17 Vict. c. 97, s. 97 (1), adjudging J. R. to be settled in G., and ordering G. to pay the preceding twelve months' expenses of his maintenance, and a weekly sum for his future support. Sect. 102 (2) of that Act provides that all expenses incurred for the removal, maintenance, &c. of a pauper lunatic removed to an asylum, "who would at the time of his being conveyed to such asylum have been exempt from removal to the parish of his settlement" "by reason of some provision in" stat. 9 & 10 Vict. c. 66, "shall be paid by the guardians of the parish wherein such lunatic shall have acquired such exemption," and where such parish shall be comprised in any union the same shall be paid by the guardians, and be charged to the common fund of such union; "and no order shall be made under any provision" "in this Act on the parish of the settlement in respect of any such lunatic pauper." On a case stated for this Court on an appeal to Sessions by G. against the order of 11th October, 1859: Held, that stat. 16 & 17 Vict. c. 97, s. 102, applied, and the order was therefore bad. That J. R. was, at the time of his being conveyed to the asylum, exempt from removal to G. by reason of a provision in stat. 9 & 10 Vict. c. 66, with which the amending statute 11 & 12 Vict. c. 111, was to be read as one: and had himself, though not sui juris, acquired such exemption in A. CASE stated by consent and by Judge's order, under stat. 12 & 13 Vict. c. 45, on an appeal to Sessions *against an order of removal, dated 11th October, 1859, by which James Randall, a pauper lunatic, was adjudged to be settled in the parish of St. Giles-in-the-Fields, and the guardians of the poor of that parish were ordered to pay 34l. 10s. 11d. to the guardians of the Strand Union, being the amount of expenses incurred by the latter in the maintenance of the lunatic within twelve calendar months before the making of the order; and also 10s. weekly for the future support of the said lunatic in an asylum. On 17th October, 1854, the said James Randall, who was (1) See now s. 288 of the Lunacy Act, 1890 (53 & 54 Vict. c. 95). (2):7b., s. 294. 1860. Nov. 10. [224] [*225 ] then eighteen years of age, and living, unemancipated, with his father, Thomas Randall (who is still alive) in the parish of St. Anne, Westminster, in the Strand Union, having become insane, was removed to the county lunatic asylum, under the authority of the Act in that behalf, and has been maintained therein ever since as a pauper lunatic. He never gained a settlement in his own right. At the time of his removal, his father was settled in the parish of St. Giles, which settlement he still retains. The father and the lunatic son, who lived with him as part of his family, had each resided in St. Anne's parish for five years and upwards next before 17th October, 1854. The father continued to reside in that parish until three years ago, when he left the parish without any intention of returning, and has not since returned. After the lunatic had been sent to the asylum, and down to 15th September, 1859, his maintenance was charged to the common fund of the Strand Union; but after that day, on which it was discovered that his father had left St. Anne's parish, the costs of such maintenance were, as to the twelve months preceding the said 15th September, transferred and for the future *charged to the parish of St. Anne. On 11th October, 1859, the order appealed against was made, under stat. 16 & 17 Vict. c. 97, s. 97 (1). The part of the expenses ordered to be paid, which was incurred between 15th September and 11th October, 1859, amounted to 21. It was contended, on the part of the appellants, that the lunatic was, at the time of his being conveyed to the asylum, exempt from removal to the parish of his settlement, by reason of a provision in stat. 9 & 10 Vict. c. 66; that, under stat. 16 & 17 Vict. c. 97, s. 102 (2), the order ought not to have been made and that the lunatic ought to continue to be maintained in the asylum out of the common fund of the Strand Union; and that, if any such order ought to have been made, it ought not to have directed the payment of expenses incurred before the date of it; or at all events, ought not to have directed the payment of expenses incurred before 15th September, 1859. On the part of the respondents it was contended that, if the lunatic was exempt from removal as alleged by the appellants, he, being, as the respondents contended, unemancipated when his father left the parish of St. Anne, and having no other settlement than that of his father, ceased to be exempt from removal by reason of any provision of stat. 9 & 10 Vict. c. 66; and that the order was properly made in its terms, upon the parish wherein the lunatic was settled. The questions for the opinion of the Court were, First, whether any order could be lawfully made on the parish of St. Giles, for payment of expenses for the maintenance, &c. of the lunatic in the asylum; Secondly, whether, assuming such an order might have been made, any order might be made for the payment of past expenses; *Thirdly, whether all the expenses incurred during the twelve months next before the order, or such part only as were incurred since 15th September, 1859, might be directed to be paid. If the first question was answered in the negative, the order was to be quashed. If that question was answered in the affirmative, the order was to be confirmed or amended according as required by the answers to the other questions. Poland, for the respondents: [He First, the order was rightly made on the appellants. cited stat. 16 & 17 Vict. c. 97, ss. 97 and 102 (1), and proceeded:] This section [s. 102] does not apply at all to such a case as the present, where the lunatic pauper is an unemancipated child; but only to cases where the lunatic has acquired the status of irremovability, under stat. 9 & 10 Vict. c. 66, in his or her own capacity, and not through a father or a husband. The words "wherein such lunatic shall have acquired such. exemption" point to a direct acquisition by the lunatic in person. (BLACKBURN, J.: Does not a child living with his father when the father becomes irremovable, also become exempt from removal, “by reason of some provision in stat. 9 & 10 Vict. c. 66?") No: the child is rendered irremovable, in such a case, by the . atic ore, (1) See notes (1) and (2), p. 677, ante. (3) 117 R. R. 268 (1 El. & El. 409). (2) 95 R. R. 630 (2 El. & Bl. 440). |