occupiers would be assessed. If the latter, the present rate is good, although the very large amount-viz., 9s. in the pound might lead one to think that it was excessive, and that it might have been reduced upon appeal. I think that these expenses should be defrayed by means of a general rate which must be made upon the occupiers, and not upon the owners. Probably the Legislature was not thinking of a matter of this kind, and it has certainly used language which is not very explicit. In section 29, it is provided that the Commissioners, previously to commencing any improvements in existing works, or any new works, where such improvements or new works involve an expenditure of more than 1,000l., shall cause plans of the proposed work, and an estimate of the expense thereof, &c. Even without such a provision, it would appear that they ought to have proceeded in that way, but the section clearly points out that the Commissioners, or, in this case, the

defendants, must do it. Then section 31 provides that if the proprietors of one half of the area of the land, within two months, declare in writing that they are unwilling that the work should be executed, the Commissioners are to take no further steps in the matter. This is what has happened in the present case, but if it had not, the defendants would have gone on and would have commenced the works, and would, under the latter part of the 31st section, have been entitled to repay out of the rates to be levied by them within the area all expenses incurred, not exceeding the estimate published in the notice."

But it is clear that that part of the section does not come into operation when the Commissioners or the board are stopped from commencing the works by the expression of the unwillingness of the proprietor that the works should be executed. The question arises, how the expenses of these abortive preliminary proceedings are to be defrayed? I think that they must be defrayed in the same manner as they would be, if the defendants had themselves, upon receiving the plans and estimate, at once said, "This is much too extravagant, we cannot incur such an expense as this," and had them

I

selves rejected the idea; in such case there would be no ground for saying that the amount could be raised by a special rate upon the owners of the land. think it must be defrayed out of the general rate, subject, of course, to investigation by the auditors, and to the right of appeal against the rate. With that matter we have nothing to do.

LUSH, J.-I am of the same opinion. I have come clearly to the conclusion that where, as in the present case, the works have not been executed, the preliminary expenses are not a charge upon the owners, but upon the occupiers. The defendants are authorized to incur preliminary expenses for the purpose of laying the scheme of drainage before the owners of the land, and it is to be observed that it is only when the expenditure for new works, or improvements in existing works, would exceed 1,000l., that they are authorised to tax the owners by a special rate. If the expenditure would not exceed 1,000l., and the defendants had done the work, it would have fallen upon the occupiers. It is only where the expenditure is to exceed 1,000l. that the owners are to be chargeable, and by section 31, before they can be charged they must be consenting parties to the works. [His Lordship read that section and then continued.] Therefore the intention of the legislature is, that the owners shall not be chargeable, except in a case where the works exceed 1,000l., and then only in a case where more than one-half of their number shall consent to the works being done; they are not to be chargeable without their consent, and in all other cases the expenses are to be defrayed by a rate upon the occupiers. That leads me to the conclusion that it was not intended, where the works were not done, and where the owners dissented from their being done, that the owners should be deemed to have incurred

any expense whatever. These preliminary expenses, which the board were authorised to incur under the Act, must, like all other expenses, be defrayed by a rate upon the occupiers. I therefore think that the rate is valid.

HANNEN, J.-I am of the same opinion. I think it is in the highest degree probable that the state of things which gives

rise to this question, was not contemplated by the legislature, but when the second regulation of section 38 comes to be considered, it appears clear that the only state of things which justifies the making of a special rate is where the improvements or new works themselves involve an expenditure of more than 1,000l. Therefore, until there has been an execution of the works themselves, the case which was contemplated for the imposing of a special rate has not arisen. As therefore this expense is not brought within the words of the second regulation in the 38th section, it follows that it must fall under the first regulation, and the defendants must be put in funds to meet it by means of a general rate, as distinguished from a special rate upon the owners. The present rate is therefore good.

Judgment for defendants.

Attorneys-Clarke, Son & Rawlins, agents for B. Bonnor, Gloucester, for plaintiff; T. G. Norcutt, agent for Moores & Romney, Tewkesbury, for defendants.

(In the Second Division of the Court.)

1871. Nov. 15.

}

GILL, appellant, v. BRIGHT, respondent.

Wine and Beerhouse Amendment Act, 1870 (33 & 34 Vict. c. 29. 8. 15)-Liquors kept for Unlawful Sale-Seizure-SaleRight of Offender to be heard.

When liquors kept for unlawful sale have been seized under s. 15 of the 33 & 34 Vict. c. 29, the justices cannot order them to be sold without giving the person, upon whose premises they were seized, an opportunity of being heard, and of shewing that the seizure was improper, or that the sale ought not to take place.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. p. 22.]

Negligence-Allowing Poisonous Leaves and Clippings of Trees to pass into Adjoining Land-Duty of Adjoining Landowners.

Declaration that the defendant was possessed of yew trees upon land belonging to him and in his occupation, the clippings of which trees were to his knowledge poisonous to horses and cattle, whereupon it became his duty to take due care to prevent the clippings from being put or placed upon land other than his own or in his occupation, where the horses and cattle of his neighbours and others might be enabled to eat them. Breach, that the defendant took so little care of the clippings that they were put and placed upon land other than his own or in his occupation, whereby the horses of the plaintiff were enabled to eat the clippings, and were poisoned and killed :-Held, on demurrer, that the declaration was bad, as it was consistent with the inference, that the clippings had been carried from the defendant's land by a stranger, or through some cause over which the defendant had no control.

Declaration. First count-That before and at the time, &c., the defendant was possessed of certain yew trees, then being in and upon certain lands of the defendant in his occupation, the clippings off which yew trees were, to the knowledge of the defendant, poisonous to horses and cattle; whereupon it became and was the duty of the defendant to take due and proper care to prevent the clippings off the yew trees from being put or placed in and upon land other than land of the defendant, or in his occupation, where the horses and cattle of his neighbours and others might be enabled to eat them. Breach, that the defendant, disregarding his duty in that behalf, did not take due and proper care to prevent the clippings off the yew trees from being put and placed in and upon land, other than land of the defendant, or in his occupation, where the horses and cattle of his neighbours and others might be enabled to eat them, but on the contrary, took so littl›, bad, and improper care of the clippings off the yew trees, that the same were put and

placed in and upon land other than land of the defendant, or in his occupation, whereby the horses of the plaintiff being upon land where they lawfully might be, were enabled to eat the clippings off the yew trees, and did eat of the same and were thereby poisoned and killed.

Demurrer, and joinder in demurrer.

Herschell, in support of the demurrer.The facts stated in the count shew no duty on the part of the defendant to guard the clippings off the yew trees in such a manner as to prevent them from being placed upon land other than that of the defendant. Yew trees grow naturally from the soil, and it is not alleged that the defendant caused the clippings to pass into his neighbour's land, but merely that he did not take care to prevent them from going there. It is quite consistent with the plaintiff's case, that the clippings may have been blown on his land by the wind, or carried there by a stranger without the knowledge of privity of the defendant.

Quain (A. L. Smith with him) in support of the declaration.-The declaration shews a good cause of action. In Fletcher

v. Rylands (1), where the plaintiff's colliery was flooded by water, which escaped from the defendant's reservoir, it was held that an action was maintainable, Blackburn, J., saying (page 156), "We think the true rule of law is that the person who for his own purposes brings on his own land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and that if he does not do so, he is prima facie answerable for all the damage, which is the natural consequence of its escape." The declaration distinctly alleges negligence on the part of the defendant, and the novelty of the action is no objection to it. The Submarine Telegraph Company v. Dickson (2).

Herschell was not heard in reply.

MELLOR, J.-I am clearly of opinion .that the declaration is bad, and that the alleged duty on the part of the defendant is one which does not result from the pre

(1) 35 Law J. Rep. (N.s.) Exch. 155.

(2) 15 Com. B. Rep. N.S. 759; s. c. 33 Law J. Rep. (N.s.) C.P. 139.

mises. The plaintiff merely states that the defendant was possessed of certain yew trees in and upon land belonging to him and in his occupation, the clippings of which were to his knowledge poisonous to horses and cattle. This statement forms the premises upon which the supposed duty is founded. Now what is this duty? That the defendant should take due and proper care to prevent the clippings off the trees from being put or placed upon land other than land of the defendant, or in his occupation, where the horses and cattle of his neighbours and others might be enabled to eat them. It is not alleged that the defendant had anything to do with the placing of the leaves on the plaintiff's land. It is quite consistent with the declaration that they might have been placed there by a stranger without the knowledge of the defendant. Is it to be said that the mere possession of land is to result in these serious consequences? I certainly cannot believe that any such duty as that relied upon can be inferred. The case of Fletcher v. Rylands (1) has nothing to do with the one before us. Fletcher v. Rylands (1) was decided upon the authority of Tenant v. Goldwin (3), where it was held that it was the duty of a person who brings filth on his own land to prevent it from flowing into the land of his neighbour. But it cannot follow from this decision that a man who causes his yew trees to be clipped is to be bound, under any circumstances, to prevent the clippings from being carried into his neighbour's land, and is to be liable for the consequences if they are carried there without his interference. Our judgment is, therefore, for the defendant.

LUSH, J., and HANNEN, J., concurred.
Judgment for the defendant.

Attorneys-Plews and Irvine, for plaintiff; Reed, Phelps and Sidgwick, for defendant.

(3) 1 Salk. 21, 360; s. c. 2 Lord Raym. 1089.

1871. June 24.

IONIDES AND ANOTHER v. THE
PACIFIC FIRE AND MARINE
INSURANCE COMPANY.

Marine Insurance-Open Policy-Declaration upon-Concealment Mistake in name of Ship.

The plaintiffs, brokers, were employed by G., of Hamburg, to enter into policies to cover hides on ship or ships to be declared. The defendants subscribed one of these policies. Another policy had been subscribed by the Progress Company, which was being wound up, and the proportion remaining open upon that policy was 1211. G. wrote to the plaintiffs directing them to declare upon the policies to cover hides shipped on "The Socrates, Jeaucard," from a port in the Brazils to Hamburg. The Veritas contained The Socrates, Captain ———, a new Norwegian vessel, and The Socrate, Captain Jeaucard, an old French vessel. The plaintiffs and their clerk looked over the Veritas and saw the two vessels as above mentioned. The clerk was then sent to the defendants, and saw D., a clerk of the defendants, who asked him whether the Socrates named in the Veritas was the ship. He said he thought it was. He indorsed upon the policy a declaration of interest by The Socrates, and requested the defendants to insure on the same ship for 1217., by way of re-insurance of what had been insured in the Progress. A policy for that amount was executed. G. shipped hides on board The Socrate, and she was lost with the hides on board.

The plaintiffs had also been cmplyed by K., of Hamburg, in the same way, and had opened with the defendants a policy on hides, by ship or ships to be declared, for 3,0001. In pursuance of further instructions from K., they agreed with the defendants for a further policy of the same nature to the extent of 5,000l. For this last transaction a slip was signed. K. subsequently wrote to the plaintiff's informing them that he had hides to the value of 2,7001. coming by The Socrates from Brazil to Hamburg, and also hides to the value of 3,6001. coming by The Sophie, and desiring them to insure 1,1001., and to declare on their open policies for the residue. One of the plaintiffs went to the defendants on the 4th of February, and saw L., another cle. k, NEW SERIES, 41.—Q.B.

in whose presence he wrote out a slip for a policy for 2,4551., which was initialed by L., and was intended to be in the stead of a declaration for that amount on the open policy for 5,000l. K. shipped hides on board The Socrate which was lost as before mentioned. Actions having been brought upon the policies for 1211. and 2,4551., the jury were asked whether the parties, in entering into the contracts, both meant to insure the hides by the vessel on which they were actually shipped, whatever her name might be, though they supposed it to be The Socrates, or whether the defendants meant to insure on hides on board The Socrates. The jury answered the question in favour of the plaintiffs:-Held, that the policy for 1211. was invalid, inasmuch as the defendants were not under any obligations to subscribe it, and the plaintiffs had by the letter received from G. reasonable means of knowledge that the vessel was the vessel of which Jeaucard was the captain, and as the expression of opinion by their clerk was tantamount to an assertion that the ship was The Socrates, there had been a misrepresentation made to the defendants as to a material fact.

But held, that the plaintiffs were entitled to recover on the policy for 2,4551., for although the slip for the policy for 5,000l. was not a contract enforceable at law or in equity, it was an engagement which could not be repudiated without a breach of faith, and the policy for 2,4551. must be taken as made on the basis of that engagement, and therefore that it was not material to the defendants whether there were or were not facts known to the insured, and not known to them, which might make the vessel a less eligible risk.

The first count of the declaration alleged that a contract was made by and between the plaintiffs and the defendants by a certain policy of insurance, whereby the defendants insured the plaintiff's as well in their own as that of the name or names of those to whomsoever the same might appertain, and, whether lost or not lost, in the sum of 3,000l. on hides as might be declared, valued at invoice cost, and 121. 10s. per cent. additional, free from particular average unless the ship should be stranded, sunk, or burnt, under 5 per cent. on the whole interest

F

part of 6,000l., from any ports or places in the Brazils, to any port of call for discharge in the United Kingdom, and for and on the continent of Europe between Havre and Hamburgh, both inclusive, and continuing the risk from the United Kingdom to Havre, by steamer to Hamburgh on board the good ship or ships whereof was master, or whoever else should or might be master, &c. And the plaintiffs say that afterwards interests on hides were declared to the defendants, and accepted by them as interests to be covered by the said policy, which interests were by the said declaration valued for the purposes of the said policy, and the aggregate values amounted to 6,0007., and amongst them the following interest, valued as aforesaid, at 245l., was declared, that is to say, 2,6001. dry salted hides, part of the value of which was declared to be covered by the said policy, such part being the said sum of 2451., though the said hides were by the said declaration collectively valued for the purposes of the said policy at 2,7001., the said sum of 2451. being by the said declaration declared to be the part of the 6,000l. to be covered by the said policy, and it was by the said declaration declared that the said hides were insured by a certain vessel called to wit "The Socrates," on one of the said voyages covered by the said policy, &c. It was then alleged that the said ship, with the said hides on board, started on the said voyage, that the hides were wholly lost by the perils insured against; that Messrs Kalkmann Brothers, of Hamburg, were interested in the said hides in respect of which the said sum of 2451. was insured; that the said insurance was made for the use and benefit, and on the account of the persons so interested, and all things were done and happened to entitle the plaintiffs to have the defendants pay them the said sum of 2451., yet the defendants did not pay the same, nor did they otherwise indemnify the plaintiffs against the said loss to the extent of the said sum of 2451. or any part thereof.

The second count alleged that a contract was made by and between the plaintiffs and defendants by a certain policy of insurance, by which the defendants held

insured the plaintiffs as well as in their own, as that of the name or names of those to whomsoever the same might appertain; and whether lost or not lost, in the sum of 2,4551. on hides valued at 2,700l. to pay average on the whole value, general average payable on foreign statement if made up abroad, from Ceara to Hamburgh on board the good ship Socrates, whereof was master, or whoever else should or might be master, &c. (There were similar allegations in this count as to the hides being lost, as to Messrs. Kalkmann Brothers being interested, and as to the non-payment of the sum of 2,4551.)

The third count alleged that a contract was made by and between the plaintiffs and the defendants by a certain policy of insurance, by which the defendants held insured the plaintiffs as well in their own as that of the name or names of those to whomsoever the same might appertain, and whether lost or not lost, in the sum of 2,8451. on hides valued at invoice charges, and 121. per cent. additional, in conjunction with policies for 3,500l., dated 14th October, 1868, warranted to sail after 1st July, 1869, from any ports and places in the Brazils to a port or ports of call, and to discharge in the United Kingdom or on the continent of Europe, between Havre and Hamburgh, both inclusive, whereof

was master, and whoever else should or might be master, &c., and the plaintiff says that afterwards interests on hides to the value and to the amount of 2,2501. were declared to the defendants, and accepted by them, as interests, to be covered by the said last recited policy, and by the said policies for 3,5007., dated 14th October, 1868, and amongst them the following, that is to say, 1,400 dried salted hides, and it was by the said declaration declared that the said hides were insured by a certain vessel called to wit The Socrates, on one of the said voyages covered by the said last mentioned policy, which voyage was in the said declaration described, and the said declaration was indorsed on the said policy, and assented to by the defendants, and all things were done and happened, and all times elapsed necessary to cause the defendants to be insurers of the plaintiffs under the said