LANDS CLAUSES CONSOLIDATION ACT-Railways Clauses Consolidation Act, 1845, ss. 6, 16: compensation for injury to premises adjoining railway by vibration, noise and smoke] - Premises adjoining a railway, but untouched by it, were depreciated in value through vibration, noise and smoke caused by the passage of locomotives over the railroad after it had been completed:Held, reversing the decision of the Queen's Bench, that the owner was entitled to compensation from the company under sections 6. and 16. of the Railways Clauses Consolidation Act

Channell, B. dissenting. Brand v. the Hammersmith and City Rail. Co. (Ex. Ch.), Q. B. 139

- Railways Clauses Consolidation Act, 1845: compensation: temporary obstruction of highway: loss of trade: interest in land injuriously affected] -Loss of trade occasioned by the obstruction of a highway during the execution of the works of a railway company is not an injurious affecting of the tradesman's interest in his premises which entitles him to compensation under the 68th section of the Lands Clauses Consolidation Act, 1845, or under the 6th or the 16th sections of the Railways Clauses Consolidation Act, 1845. Rickett v. the Metropolitan Rail. Co. (House of Lords), Q.B. 205

A railway company placed a temporary bridge over a highway during the construction of their works, whereby access to a public-house was made more difficult than theretofore, passengers were deterred from passing that way, and loss of custom and trade ensued to the public-house: -Held, per the Lord Chancellor and Lord Cranworth (Lord Westbury dissenting), that this was not a damage for which compensation could be claimed. Per the Lord Chancellor, the 68th section of the 8 Vict. c. 18. and the 6th section of the 8 Vict. c. 20. provide for damage of a permanent, and not merely of a temporary nature, and the 16th section of the 8 Vict. c. 20, which provides for damage of a temporary nature, contemplates only a direct and not a merely consequential damage; and per Lord Cranworth, compensation can only be claimed where damage has been done to the structure of the property, or where the plaintiff has suffered some special damage differing not merely in degree from that which the rest of the public has sustained. Ibid.

son intimated his readiness to pay it, and put his
hand into his pocket for the money, when the
plaintiff stopped him and told the wife that he
would make her a present of the money. He
thereupon gave her a receipt for the amount of
the interest, and wrote an indorsement on the
promissory note to the effect that the interest
had been paid. An action having been brought
against the son's executrix, to recover the amount
of the loan,-Held, per Martin, B., Channell, B.
and Pigott, B., that this transaction would sup-
port a plea of payment, and therefore was suffi
cient to take the case out of the Statute of
Limitations. Contra, per Bramwell, B. Maber
v. Maber, Ex. 70

LOCAL BOARD OF HEALTH-election of member
without personal attendance of chairman]—An
election of members of a local board of health,
under the Public Health Act, 1848 (11 & 12
Vict. c. 63), ss. 21, 27, conducted by the statu-
tory assistants of the chairman during his
absence, and which is certified by him solely
upon their report, is null and void. R. v. Back-
house, Q.B. 7

LOCAL IMPROVEMENT ACT. See Landlord and
Tenant.

LORD MAYOR'S COURT-foreign attachment: pro-
hibition: pleading]- The Court of the Lord
Mayor of the city of London is an inferior Court
of local jurisdiction, confined to the limits and
liberties of the City. And a custom of foreign
attachment of a debt due to the defendant from
a third person on the bare fact of the latter
being found within the City when neither the
plaintiff, nor the defendant, nor the garnishee,
are in any way connected with the City, and
when neither the cause of action between the
plaintiff and the defendant, nor the alleged debt
from the garnishee to the defendant arose within
the jurisdiction of the City, is bad. The Mayor
and Aldermen of the City of London v. Cox
(House of Lords), Exch. 225

The garnishee is entitled to move for prohibition
against the Lord Mayor's Court proceeding
with the garnishment without first raising in
that Court the question of jurisdiction. Probi-
bition would only have issued at the suit of the
original defendant, after the defendant had first
raised the question by plea in the Lord Mayor's
Court-20 & 21 Vict. c. 157. Ibid.

MALICIOUS PROSECUTION-An action for a mali-
cious prosecution will not lie if the proceeding
complained of terminated in the conviction of
the plaintiff, which has not been quashed; and
it makes no difference that there is no appeal
from such conviction. Basébé v. Matthews, C.P.
296; M.C. 93

MANDAMUS-pleading: claim defectively stated in
writ: issue joined: imperfection cured by verdict]
-Where there is any defect, imperfection or
omission in any pleading, whether in substance
or form, which would have been a fatal objection
on demurrer, yet if the issue joined be such

as necessarily required, on the trial, proof of
the facts so defectively or imperfectly stated or
omitted, and without which it is not to be pre-
sumed that either the Judge would direct the
jury to give or the jury would have given the
verdict, such defect, imperfection or omission
is cured by the verdict of the common law.
Delamere v. the Queen, on the prosecution of
Evans (House of Lords), Q.B. 313

action for breach of duty of railway
company to issue warrant to assess compensa-
tion]-Where a railway company have given
notice to a landowner that they required his
land for the purposes of their undertaking, and
the case is one entitling the landowner to have
the amount of compensation assessed by a jury,
but the company have neglected to issue their
warrant to the sheriff to summon a jury for that
purpose within a reasonable time after they were
required to do so, the landowner, if he is per-
sonally interested in the warrant being issued,
and has sustained damage, or may be damaged,
by its not being issued, has a right to proceed
under the Common Law Procedure Act, 1854,
section 68, by an action for a mandamus to the
railway company to issue their warrant. Fotherby
v. the Metropolitan Rail. Co., C.P. 88
MARINE INSURANCE-policy: deed executed and
attested retained in possession of grantor: duties
of insurance brokers: cancellation of policy]
-The plaintiffs' broker, by their directions,
agreed with the defendants (a marine insurance
company) for the insurance of the plaintiffs' ship
on certain terms; a policy of insurance under
seal, &c. was duly executed in the absence of
the broker; and according to the usual practice
the deed was retained in the company's office to
await the broker's application for it, and the
broker debited with the premium; when the
premium became payable according to the debit-
ing and was demanded, the broker (who had
charged to and been paid by the plaintiffs the
amount thereof) declared the insurance was a
mistake, and without the plaintiffs' authority
had the deed cancelled. The plaintiffs brought
an action on the deed:-Held, reversing the
decision of the Court of Exchequer Chamber
(33 Law J. Rep. (N.s.) C.P. 13), that although
retained in the defendants' office, under the
above circumstances, the deed was fully per-
fected, and constituted a complete contract of
insurance between the parties; and as the broker
had no authority to cancel it, the action was
maintainable. Xenos v. Wickham (Chairman of
the Victoria Pire and Marine Insurance Com-
pany) (House of Lords), C.P. 313

insurance of cargo: policy: fraud: con-
cealment]-The plaintiff, a merchant at Liver-
pool, employed R, a resident at Smyrna, to
act as his agent in buying and shipping goods,
and consigning them to him at Liverpool. R.
was paid a salary of 8001. a year, and in the
course of his employment purchased for the
plaintiff, and put on board a ship, a cargo of
madder roots. The ship sailed from Smyrna on

the 21st of January, 1861, and was wrecked on
the 23rd, the cargo becoming a total loss. Upon
the 12th of January R. wrote to the plaintiff,
forwarding the invoice and weights of the ship-
ments, and on the 19th he wrote again, sending
the bill of lading. On the morning of the 24th
he heard of the loss, and on the 26th, the first
post day, he wrote to inform the plaintiff, the
letter containing the following passages: "I
hope to goodness you are fully insured," and
"I did not dare telegraph you, for once you had
the intelligence in hand you were prevented
from assuring." He might might have telegraphed the
information, but purposely refrained from doing
so in order that the plaintiff might insure the
cargo. On the 31st, after the receipt of the
letters of the 12th and 19th, but before receiving
the letters of the 26th, the plaintiff gave instruc-
tions for insurance of the cargo with the com-
pany of which the defendant was chairman. The
slip for an insurance, "lost or not lost," was
signed on that day, there being no fraud or
undue concealment by the plaintiff of a material
fact within his own personal knowledge:-Held,
that, under these circumstances, it was the duty
of R. to have telegraphed to the plaintiff, and
that the fraud committed upon the company by
his intentional concealment deprived the plaintiff
of his right to enforce the policy. Proudfoot v.
Montefiori, Q.B. 225

concealment of material fact: means of know-
ledge: necessity of inquiry]-A ship well known
in England, through newspapers and by public
repute, as a Confederate cruiser, was advertised
for sale in an English port and purchased by
the plaintiff, who procured her to be registered
as a British vessel, and sent to an insurance
broker an order to insure her, and a slip con-
taining accurate particulars of the name of the
vessel, place where she was built, her captain,
tonnage and charter, but omitting to mention
that she had been in the Confederate service.
The defendant, after seeing this slip, under-
wrote the vessel without any further informa-
tion, and, as he swore, with no knowledge that
the vessel had been the Confederate cruiser.
The vessel having been seized by the government
of the United States, the jury, in an action on
the policy, found that the defendant was not
aware of the fact that the vessel proposed for
insurance was the former Confederate cruiser,
but that he had abundant means of identifying
the ship at the time of underwriting her. In
answer to a question from the Judge, the jury
added that the means of knowledge referred to
were to be found in the slip itself:-Held, that
upon this finding, the defendant was entitled
to have the verdict entered for him, as the jury
must have meant either that the previous know-
ledge of the defendant, added to the particulars
furnished to him, constituted the means
knowledge, or that if he had made further
inquiries after consulting the particulars, he
would have obtained such knowledge, and the
assured cannot avoid the necessity of directly
communicating a material fact, peculiarly
within his own knowledge, by speculating on

of

-

the recollection of the underwriter and the
chance of his making further inquiries. Bates
v. Hewitt, Q.B. 282

policy on goods: constructive total loss]-
Where, in an action against an insurer on a
marine policy of insurance of goods, as for
a total loss, it appears that the goods, in conse-
quence of the perils insured against, are lying
at a place different from their destination,
damaged, but in such a state that they may be
carried to their destination, the jury, in deter-
mining whether it is practically lly possible to
carry them on (that is, whether to do so will
cost more than it is worth), should take into
account all the extra expenses consequent on
the perils of the sea, such as drying, landing,
warehousing and re-shipping the goods, but
they ought not to take into account the fact,
that if they are carried on in the original bottom,
or by the original shipowner in a substituted
bottom, they will have to pay the freight origin-
ally contracted to be paid, that being a charge
to which the goods are liable when delivered,
whether the perils of the sea affect them or not;
and where the original bottom is disabled by
the perils of the sea, so that the shipowner is
not bound to carry the goods on, and he does
not choose to do so, the jury are not to take
into account the whole of the cost of transit
from the place of distress to the place of desti-
nation, which must be incurred by the goods-
owner if he carries them on, but only the excess
of the cost above that which would have been
incurred if no peril had intervened. Farnworth
v. Hyde (Ex. Ch.), С.Р. 33

insurance of chartered freight: total or partial
loss: suing and labouring clause: usage]-A.
having chartered his vessel for a voyage, insured
the chartered freight with B. by a policy con-
taining a warranty against particular average
and the usual suing and labouring clause. The
ship was lost, and the goods landed, warehoused,
and sent on at a less freight from an interme-
diate port:-Held, that there was a total loss of
freight at the intermediate port, unless it could
be averted by such forwarding; that such for-
warding was a particular charge within the
suing and labouring clause, and did not convert
the total into a partial loss within the warranty
against particular average, and that A. was
therefore entitled to recover the expense of such
forwarding from B. in an action on the policy.
Kidston v. the Empire Marine Insurance Co.
(Ex. Ch.), C.P. 156

pany which was formed for the purpose of laying
down a submarine cable between I. and N.
caused himself to be insured by a policy framed
in the common form of a marine policy, but
containing in addition the following clauses,
viz., "The risk to commence at, from and in-
cluding the time of laying the cable on board
the G. E, and to continue till the cable be laid
in one continuous length between I. and N, and
until 100 words shall have been transmitted
from I. to N. and vice versa, the risk of this
policy then to cease and determine"; and "it
is hereby understood and agreed that this policy,
in addition to all perils and casualties herein
specified, shall cover every risk and contingency
attending the conveyance and successful laying
of the cable from and including its lading on
board the G. E. until 100 words be transmitted
from I. to N. and vice versa; and it is distinctly
declared and agreed that the transmission of the
100 words from I. to N. and vice versa shall be
an essential condition of this policy":-Held,
that this was an insurance on the entire adven-
ture of laying down the cable successfully in
that one particular voyage of the G. E; and
that, the cable having broken when being hauled
on board the G. E. after half of it was laid down,
the underwriter was liable for a total loss,
although the other half of the cable was saved
and ready to be used in a subsequent attempt
to complete the communication between I. and
N. Wilson v. Jones (Ex. Ch), Ex. 78

MARINE INSURANCE (continued)-construction of
policy and rules of association]-A mutual insur-
ance association, by which the members were to
insure each other's ships, and to bear the loss in
proportion to the premiums charged against each
member, and by which the manager wasauthorized
by power of attorney to recover the premiums, to
settle all losses, and to draw on members for their
several proportions of such losses, issued to its mem-
bers a policy, in the ordinary form of a Lloyd's
policy, with the rules of the association indorsed
on and incorporated with the policy. There were
printed in the policy, in a line by themselves,
the words "twenty pounds per centum" imme-
diately after the acknowledgment "confessing
ourselves paid the consideration due unto us for
this assurance by the assured, at and after the
rate of." The rules indorsed contained nothing
to limit the liability of the members to 20l. per
cent.:-Held, that notwithstanding these words
in the policy, the liability of the members to
contribute the payment of losses was not limited
to 20l. per cent. Gray v. Gibson, C.P. 99

- construction of rules of mutual insurance
association: liability of individuals]-By the
rules of a mutual marine society, it was provided
that the members should-severally and respec-
tively, and not jointly or in partnership, or the
one for the other of them, but each only in his
own name-insure each other's ships, from the
date of entry of each respectively until noon of
the 20th of February then next, thence till noon
of the 20th of February in the next succeeding
year, and so on from year to year, against all

losses; and that in order more readily to provide
for the payment of claims, the managers (nomi-
nated by the rules) should be empowered to
levy contributions of one-fourth of the fixed an-
nual premium by drawing bills upon the several
members; provided always, that if the gross
amount of the losses and expenses during any
one year should exeeed the amount of the pre-
miums so realized, the deficiency should be
made good by an additional per-centage, which
members during the year should be respectively
bound to contribute and pay to the managers;
also that the managers' drafts on the members
for their proportions should be duly accepted
and punctually paid when due; and that if any
member neglected to accept or pay the drafts,
he should immediately cease to be insured in
the association, and forfeit all claims, &c., but
should remain liable to contribute his share, and
the amount due from him should be considered
a debt due to the managers, and should be
recoverable by them at law. To a declaration
against an individual member of the association
on a policy setting out the rules, the defendant
pleaded, first, that he had paid the amount de-
manded of him by the managers, and, secondly,
that the bills accepted by him were not yet due :
-Held, that the pleadings shewed no breach
of the contract into which the defendant had
entered. Redway v. Sweeting, Ex. 185

MARRIAGE FEE. See Clergy.

MASTER AND SERVANT-negligence of fellow ser-
vant: foreman: fall of tramway] The plaintiff
was a workman in the employment of the defen-
dant, a maker of locomotive engines. He was
ordered by the defendant's foreman to get upon
a travelling crane moving upon a tramway, and
used in hoisting engines, and he obeyed. It was
the first occasion of using the crane, and the
first time that the plaintiff was employed upon it.
The piers supporting the tramway gave way,
it fell, and the plaintiff was injured. There was
no evidence of any defect in the crane, negli-
gence in the mode in which it was used, that
the engine was of unreasonable or improper
weight, that the defendant had employed un-
skilful or improper persons in building the piers,
or that he knew of their insufficiency; neither
did it appear that he had personally interfered
at the time of the accident:-Held, setting
aside a verdict for the plaintiff, first, that the
foreman was not a deputy or representative of
the defendant, but a fellow servant of the plain-
tiff; secondly, that there was no evidence for
the jury of personal negligence on the part of
the defendant, Feltham v. England, Q.B. 14

negligence: fellow servant: common employ
ment]-A railway-station, which was used both
by the G. W. Company and the L. and N.-W.
Company, was under the charge of a servant of
the L. and N.-W. Company. A train belonging
to the G. W. Company, and driven by one of
their drivers, having been improperly and negli-
gently shunted into a siding, injured the plaintiff,
a servant of the L. and N.-W. Company, who