something else remained to be done to ascertain the amount to be paid. But I agree that the question is not now how the property was vested. The question before us is as to the risk, and I collect from the terms of the contract that at the expiration of two months the risk was to become that of the buyer. The memorandum contains these words—“ Prompt, one month, discount 1 per cent. stove goods at seller's risk for two months; other goods for one month." Therefore the buyer was to pay an approximate price at the end of one month; then the goods were to be at the seller's risk, if the buyer chose to leave them in the warehouse for a month longer, and the necessary implication is, that at the expiration of one month they were to be at the buyer's risk. This seems as plain as if those words had been expressly inserted in the agreement. Therefore, without saying in whom the property was vested, it appears to me to have been clearly agreed that after the expiration of two months, the goods in the refiner's warehouse were to be at the risk of the buyer. The fire happened after the expiration of the two months, and therefore the loss falls on the defendant.

Then another question raised is, whether the buyer is entitled to claim any of the proceeds of the insurance as a set-off. The only statement on this point is in paragraph 16, and from the facts there given I think it very clear that there was no contract on the part of the plaintiffs to insure the goods for the benefit of the defendant. On the other hand, I take it, from what is stated about the custom, that the defendant knew there was a floating policy effected by the plaintiffs, and probably trusted to that, and forbore to insure on his own account. But then he must be deemed to know also that the value of the stock in the warehouse was fluctuating continually, and might at one time be larger and at another smaller than the amount insured, and that the plaintiffs effected the policy for their own security, and therefore it was a chance whether any part of the policy would cover the risk on his goods. The plaintiffs insured for their own protection and not for the benefit of the defendant, and

they were therefore at perfect liberty to apply the whole amount insured to their own loss.

QUAIN, J.-I am of the same opinion. I think the first question in the case may be decided on the short ground that whether the property passed to the buyer or not, yet by the express contract between these parties the risk did not accompany the property, as it was expressly agreed that after the two months the risk should be in the buyer. Now, if this be the case, it seems admitted that the question whether the property passed becomes immaterial, and having regard to the fact that there was an express stipulation that the seller should incur the risk during the first two months, and considering the nature of the contract and the practice between the parties, it seems clear that what was meant was, that after two months the risk should be in the buyer, and not in the sellers, and as the fire happened after the expiration of the two months, the plaintiffs are entitled to recover. On the second question I had at first some doubt, arising from the fact admitted on the face of the case that the particular policies did apply to the undelivered sugar, that the claim as sent in by the assured was for all these goods, and that they received the whole amount insured. I had some doubt whether it could not be said that the assured did receive money on account of those goods. But on further consideration I have come to the opposite conclusion on two grounds-first, because I take it that the set-off would only apply where there was an express contract to insure between the insurer and the customer, or where the sellers entered into a voluntary insurance for the purchaser, and having received the money, ought in equity to hand it over to him. But I cannot infer any such contract from the facts in this case, and there is nothing to go to the extent of saying that an action would lie at the suit of the buyer against the sellers for not paying the premiums, or not keeping up the policy, or for not effecting it. If there had been such a contract I think Mr. Brown would have made out his point that as between the parties there was a

contract to insure, and the insurers having received the full amount of the insurance, they would have been bound to appropriate an aliquot part to the customer as far as his goods extended. I take it that Waters v. The Monarch Life and Fire Assurance Company (6), and The London and North Western Railway Company v. Glyn (7) decide that if the sellers got the money on account of these very goods, and there are words in the policy sufficient to cover the goods, they ought to account to the customers. The difficulty here is that they have only received a sufficient sum to cover part of the loss, and even if the goods of the defendant were left out of consideration altogether, the plaintiffs would not have received enough to cover their own loss, and therefore there is no equity between them and their customers. In 2 Parsons on Contracts, 5th ed. p. 353, under the head Marine Insurance, I find the following passage, viz., "If the goods are insured by a bailee having a lien on them for charges, commissions, &c., and are described as goods held by him in trust, in an action brought by him in his own name, he recovers the whole value of the goods, and after deducting his lien, he holds the balance in trust for the owner. But as between the insured and the owner of the goods held by him in trust, the latter cannot recover unless it appears that he had elected to adopt the policy before its force as an insurance upon his goods has been in any degree impaired by any act of the insured, or that the latter has actually received money from the insurance company on account of goods other than his own." It appears to me to be also the principle of the English cases, that in order to raise any trust of that kind, the customer must clearly shew that the assured received a portion of the money for and on account of some other goods than his own. Two English cases have decided that where there is a trust the insurer ought to hand the money over, but no trust can be made out here, for the amount of the policy is not sufficient to cover the goods of the insurer. Therefore the plaintiffs have not received in any equitable sense of the term money in respect of these goods and on trust for the defendant. On these two grounds, I think NEW SERIES, 41.—Q.B.

that the set-off contended for by Mr. Brown cannot be supported, and that the plaintiffs are entitled to judgment.

Judgment for the plaintiffs.

Attorneys-Walker & Sons, for plaintiffs; Linklater & Co., for defendant.

1872.

April 27.{

BARNES (appellant) v. AKROYD AND OTHERS (respondents). Nuisance Chimney-Smoke- Occupier of Premises; Liability of-18 & 19 Vict. c. 121. s. 12-23 & 24 Vict. c. 77. s. 13-29 & 30 Vict. c. 90. s. 19.

By 29 & 30 Vict. c. 90. s. 19, the word "nuisances" under the Nuisance Removal Acts shall include any chimney (not being the chimney of a private dwelling-house) sending forth black smoke in such quantity as to be a nuisance :-Held, that in the event of such a nuisance existing, the occu pier of the premises is liable to be charged and to have an order made upon him for the abatement of the nuisance, although it may have arisen or have been continued by the act of a servant employed by him upon the premises.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. p. 110.]

1872.

April 27.

THE QUEEN ON THE PROSECU-
TION OF SIMPKIN v. THE
JUSTICES OF THE BOROUGH
OF BIRMINGHAM.

Alehouse-Person about to RemoveExpiration of License-Special SessionsJurisdiction-9 Geo. 4. c. 61. ss. 4, 14.

A license, dated 10th October, 1870, was granted by the Commissioners of Inland Revenue to W., authorising him to sell exciseable liquors by retail on the premises occupied by him. The license expired by effluxion of time on the 10th of October, 1871. At the General Annual Licensing Meeting held on the 25th of August, 1871, he applied for a renewal of his license, but the justices refused to renew it. He con

2 I

tinued to occupy the premises until the 13th of October, 1871. He was succeeded in the occupation by S., who, after giving the proper notices, applied at the Special Sessions holden on the 4th of January, 1872, for a license to sell exciseable liquors by retail to be drunk on the same premises, which he intended to keep as an inn. The justices at the Special Sessions refused the application, considering that they had no jurisdiction inasmuch as W. had remained in possession until after the expiration of the license :-Held, that they were right, and that there was no jurisdiction at the Special Sessions to grant the license.

Poor Law-Removal of Pauper-Irremovability-Break of Residence-9 & 10 Vict. c. 66. sec. 1.

P., a widow, had lived with her husband in the parish of M. continuously for many years up to December, 1868. At that time they were both in the workhouse of the parish. He was removed to a lunatic asylum, where he died; she remained in the workhouse till October, 1870, when she went into service in the parish. She remained in her place for six weeks, when being too old for service she left, saying that she wished at any rate first to have a holiday. She went to visit her son, who lived out of the parish, and stayed with him for three days, but only on a visit, and with no intention of staying. She then went on a visit to E. Clarke, and stayed with her out of the parish for three days. She endeavoured to get work, and if she could have got any, she would not have returned to the parish. She told E. Clarke that she was going back to the workhouse, but asked E. Clarke to let her know if she, E. Clarke, heard of any work that would suit her. Having left the house of E. Clarke, she

THE QUEEN V. WATERHOUSE

AND ANOTHER.

May 6. Nuisances Removal Act-Sanitary Act, 1866-Chimney-18 & 19 Vict. c. 121-29 & 30 Vict. c. 90. s. 19, ss. 3—Order of Abatement-Distinct Offence.

By the 18 & 19 Vict. c. 121. s. 14 any person not obeying an order of justices to abate a nuisance complained of shall, if he fail to satisfy the justices that he has used all due diligence to carry out such order, be liable for every such offence to a penalty of not more than ten shillings per day during his default. By 29 & 30 Vict. c. 90. s. 19, sub-sec. 3, any chimney (not being the chimney of a private dwelling-house) sending forth black smoke in such quantity as to be a nuisance, is to be included under the word nuisance in the Nuisances Removal Acts. An order of abatement of the lastmentioned nuisance was made by justices, which was not complied with, and subsequently nineteen summonses were issued for disobedience of the said order, laying the disobedience to have occurred on nineteen distinct days, and such summonses were returnable, and heard on the same day, when the justices convicted on each of the summonses, and imposed a penalty of ten shillings upon each summons, with a separate set of costs in respect of each summons and conviction:-Held, that the sending forth black smoke from the chimney was the nuisance, and that each summons was issued in respect of a distinct offence, and that the convictions were right.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. 115.]

Practice-Action for Breach of Promise -Defendant Residing out of Jurisdiction— Cause of Action without the JurisdictionLiberty to proceed.

The defendant, a British subject residing in Germany, agreed to marry the plaintiff. The agreement was made in Germany, and the marriage was to take place in that country, though no precise time for the ceremony was fixed. Subsequently the defendant, while still in Germany, wrote to the plaintiff giving back his promise and withdrawing her own. The letter was received by the plaintiff in England; he wrote refusing to accept her refusal, and urging her to marry him. A writ out of this Court having been personally served upon her, a Master made an order, under 8. 18 of the Common Law Procedure Act, 1852, that the plaintiff should be at liberty to proceed in the action-Held, that the order was wrong, that the words cause of action" in the 18th section mean the whole cause of action, that the contract was made in Germany, and that the breach occurred there also; the receipt of the letter written by the defendant furnishing the plaintiff with evidence that the defendant

had renounced the relation of betrothed persons.

The Court declined to concur with the opinion expressed by the Court of Common Pleas in Jackson v. Spittal (39 Law J. Rep. (N.S.) C.P. 321), and adhered to its own decision in Allhusen v. Malgarejo (37 Law J. Rep. (N.S.) Q.B. 169).

This was a motion for a rule nisi, calling upon the plaintiff to shew cause why an order made by one of the Masters of this Court should not be rescinded.

The order was in these terms: "I do order that the plaintiff be at liberty to proceed in this action by filing a declaration against the defendant, &c."

An application had been made on the part of the defendant to Willes, J., at Chambers, to set aside the above order; but the learned Judge referred the application to this Court.

It appeared from the affidavits that the action was brought by the plaintiff, who resided at Southampton, against the defendant, a British subject residing at Homburg in Germany, to recover damages which, as the plaintiff alleged, he had sustained for the breach by the defendant, within the jurisdiction of this Court, of a contract made to marry him.

The defendant was a native of Ireland, but, excepting a short visit to Paris, she had continually resided at Homburg from the early part of 1871 to the 13th of March, 1872, since which time she has been residing at Ostend and at Brussels, in the kingdom of Belgium. She and the plaintiff had, in the year 1871, while at Homburg, entered into an engagement to marry. The marriage was to take place at Homburg in the month of September, but was indefinitely postponed. On or about the 11th of October in the same year, while still at Homburg, she wrote to the plaintiff as follows-"I have received a letter from my father peremptorily forbidding my marriage, and I cannot disobey him in this matter, as I must presume he has good reasons for this painful determination, which he has not fully explained to me. I now write to say that in obedience to his wishes I give you back your promise and withdraw my own, and I trust you will not add to the pain I feel at this by secking to change the determi nation which he has made final; wishing you every happiness in this life, I remain, &c."

This letter was received in England on the 13th of October, 1871.

Shortly afterwards the defendant, at Homburg, received a letter from the plaintiff, which was to the effect following: That he would not accept her letter which she had penned, for he would not for a moment believe that it was written with her own free will, and urging her to marry him and to disregard the prohibition of her father. She made no reply to this letter. On the 18th of December, 1871, the defendant, while at Homburg, was personally served with a true copy of a writ of summons issued out of this Court.

It was sworn that the defendant was believed to be in her twenty-ninth year, and that she wilfully neglected to appear to the said writ with a view to delay and defeat the plaintiff's claim. The order above referred to was then obtained.

J. J. Aston (April 16) in support of the application. There are two objections to the order. First, no breach of a contract has been made within the jurisdiction of the

Court; and secondly, the whole cause of action did not arise within the jurisdiction of the Court. If that be so, the Master had no jurisdiction, under s. 18 of the Common Law Procedure Act, 1852 (1), to make the order. See Allhusen v. Malgarejo (2), where it was held that, in an action for breach of a contract made abroad, but to be performed in this country, leave to proceed by service out of the jurisdic tion could not be allowed, as the cause of action had not arisen within the jurisdiction.

The Court then granted a rule nisi, against which cause was shewn in the first instance by

Day-The breach of the contract happened here, and the cause of action is in

(1) The Common Law Procedure Act, 1852 (15) & 16 Vict. c. 76), s. 18 enacts-" In case any defendant, being a British subject, is residing out of the jurisdiction of the said superior courts, in any place except in Scotland or Ireland, it shall be lawful for the plaintiff to issue a writ of summons in the form contained in the schedule (a) to this Act annexed, marked No. 2, which writ shall bear the indorsement contained in the said form, purporting that such writ is for service out of the jurisdiction of the said superior courts; and the time for appearance by the defendant to such writ shall be regulated by the distance from England of the place where the defendant is residing; and it shall be lawful for the Court or Judge, upon being satisfied by affidavit that there is a cause of action which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction, and that the writ was personally served upon the defendant, or that reasonable efforts were made to effect personal service thereof upon the defendant, and that it came to his knowledge, and either that the defendant wilfully neglects to appear to such writ, or that he is living out of the jurisdiction of the said Courts in order to defeat aud delay his creditors, to direct from time to time that the plaintiff shall be at liberty to proceed in the action, in such manner and subject to such conditions as to such Court or Judge may seem fit, having regard to the time allowed for the defendant to appear being reasonable, and to other circumstances of the case; provided always, that the plaintiff shall, and he is hereby required to, prove the amount of the debt or damages claimed by him in such action, either before a jury upon a writ of enquiry, or before one of the Masters of the said superior courts, in the manner hereinafter provided, according to the nature of the case, as such Court or Judge may direct; and the making such proof shall be a condition precedent to his obtaining judgment."

(2) 37 Law J. Rep. (N.s.) Q.B. 169; s. c. Law Rep. 3 Q.B. 340.