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for sea insurance shall be valid unless expressed in a policy. And by section 9, no policy shall be pleaded or given in evidence in any Court unless duly stamped.

As the slip is clearly a contract for marine insurance, and is equally clearly not a policy, it is, by virtue of these enactments, not valid, that is, not enforceable at law or in equity; but it may be given in evidence wherever it is, though not valid, material, and in the present case it is material.

The defendants could not, without a breach of faith, repudiate that engagement, and they never proposed to do so. And, whilst they adhered to that engagement, it was not material to them 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; for they were going to take her, whatever she was, at a premium the amount of which was already finally fixed. Mr. Milward's argument was that they were not legally bound to do so, and that therefore when they entered into a substituted policy on a ship, they were entitled to hold it avoided for want of a disclosure which, in fact, would have made no difference. This would be to make the rule that contracts of marine insurance are considered as uberrimæ fidei, a means in this case of working fraud. In fact, the case is exactly as if the underwriter had said, “I have finally made up my mind to take the policy on unalterable terms; nothing you can disclose to me will make the least difference; and therefore you need disclose nothing." It is true the last words were not expressed, but they were evidently implied.

But

The only remaining point arises, therefore, on the misnomer of the vessel, which was called in the policy The Socrates, when in fact she was The Socrate. the rule of law, both in England and America, is that stated by Mr. Philips (7), "that if the description in the policy designates the subject with sufficient certainty, or suggests the means of doing it, a mistake in the name of the ship, or in other particulars, will not defeat the contract."

(7) 1 Ph. sect. 430.

In Le Mesurier v. Vaughan (3), where the broker had received instructions to insure goods by an American ship called The President, and by mistake insured as on a ship called The American President, it was held that it being clearly proved by the invoice and letter of instructions that the goods were on The President, and that the name was a mistake, the plaintiff might recover. It is true that in the judgment some weight seems to have been given to the expression contained in the ordinary Lombard Street policy"or by whatever other name or names the said ship should be called," and that those words are omitted in the form of the policy used by the defendants in the present case. But we think this far too narrow a ground, and that the real ground of the decision is that which is expressed by Lord Ellenborough, that where it can be proved that it is a clear mistake, and the underwriters cannot be prejudiced by the mistake, it is of no consequence. The jury here have found, and were justified in finding, that neither party cared what the name of the ship was, as they meant to insure the goods by the ship on which they were really shipped.

When the other policy for the 1217. was made, it appears plainly that the underwriter really believed that the ship was the Norwegian ship, and that was a matter very material to the risk, and the underwriter was free to accept or refuse that risk, and therefore the mistake in the name was of importance.

We think, therefore, that the rule should be made absolute to enter a verdict on the first and sixth pleas, so far as they relate to the fourth count, and discharged as to the residue.

Rule accordingly.

Attorneys-Hillyer & Fenwick, for plaintiffs; Holmer, Robinson & Stoneham, for defendants.

1871. Nov. 18.

EASTON (appellant) v. THE for property belonging to the guardians

HIGHWAY BOARD OF THE RICH

MOND HIGHWAY DISTRICT (respondents).

Highway Encroachment-27 & 28 Vict. c. 101. s. 51-Carriage-way-Dedica

tion.

By s. 51 of 27 & 28 Vict. c. 101, if any person shall encroach by making or causing to be made any building or pit, or hedge, ditch, or other fence, &c., on the side or sides of any carriage-way or cartway within 15 feet of the centre thereof, &c., he shall be subject, on conviction for any such offence, to any sum not exceeding 40s., notwithstanding that the whole space of 15 feet from the centre of such carriage-way or cartway has not been maintained with stones or other materials used in forming highways:Held, that this enactment only applies to persons who have committed the alleged encroachment upon the carriage-way or cartway, or upon that part at the side which has been dedicated to the public.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. 25.]

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Poor Law-Dissolution of Union-Clerk of Union-Compensation-Office or Employment-30 & 31 Vict. c. 106. s. 20.

Upon the dissolution of a Poor Law Union the 30 & 31 Vict. c. 106. s. 20, enacts that, "if any person shall by means of such dissolution be deprived of any office or employment, the Poor Law Board may, according to their judgment, award a compensation to be paid to such person," &c. The Board on awarding to a clerk of a dissolved union, who was a solicitor, compensation for the loss of his office, took into consideration, in addition to the amount of his salary as clerk, a sum paid him for professional charges connected with proceedings under the Lands Clauses Consolidation Act, to obtain compensation

NEW SERIES, 41.-Q.B.

taken by a railway company :-Held, that the Board were acting within their jurisdiction in exercising their judgment upon such a basis, and that it was competent for them to take into consideration advantages arising out of, though collateral to, the employment as clerk, in addition to the salary attached to the office.

[For the report of the above case, see 41 Law J. Rep. (N.S). M.C. 16.]

1871. MARSHALL V. THE ULLESWATER Nov. 27. STEAM NAVIGATION COMPANY. Trespass Obstruction of Navigable Lake -Right of Way.

A. being the owner of land adjoining a navigable lake, the bed of which was the soil and freehold of the plaintiff, granted to the defendants a right of way, and made a pier, part of which was upon his own land, and part upon the bed of the lake. He then leased the pier and the land belonging to him to the defendants, a Steam-Boat Company, who used the pier for the purpose of landing and embarking passengers. If the pier had not been built on the bed of the lake, they might have brought their steam-boats sufficiently near to be able to land their passengers by means of a temporary stage reaching from their boats to the land so leased to them, and upon which part of the pier was built. The public had a right to navigate the lake, and the plaintiff had not removed the pier, although it had been erected without his consent and against his will:-Held, that he could not maintain an action against the defendants for using the pier as above stated, inasmuch as while he allowed it to remain, it was an obstruction to their right to navigate the lake, and to land and embark their passengers at that place.

SPECIAL CASE stated for the opinion of this Court.

This was an action brought by the plaintiff against the defendants for breaking and entering a pier or jetty of the

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plaintiff, and causing persons to go, pass, and repass over and upon the said pier or jetty, and there to embark or disembark from steam-boats or other boats and vessels. By the consent of the parties, and by the order of Mellor, J., this CASE was stated under the Common Law Procedure Act, 1852.

1. In the month of April in the year 1859, Henry William Askew, Esq., the owner of some land adjoining Ulleswater Lake, and within the manor of Glenridding, entered into an agreement with the defendants in the words and figures following

"I do hereby, on behalf of myself, my heirs and assigns, grant to the Ulles water Steam Navigation Company, through my field, a right of way parallel to the River Glenridding, connecting the public road with the Beckfoot, and with the pier (which is about to be erected), for the term of twenty-three years. The company paying me for the same 101. per annum during the years ending April, 1860, and 1861, and 201. per annum for the remaining twentyone years of the above term. The rent to be paid at the expiration of each current year from date hereof.

"The above-named right of way and pier are granted on the above terms to the company, upon the distinct understanding that they are to be used by the company exclusively for purposes in connection with the steamers, such as conveying, landing, and shipping passengers and light luggage only, but to the entire exclusion of lead, oil, coal, lime, minerals or other heavy goods, and if such are conveyed on the above named road, the annual rent will be 1007. during the remainder of the lease from the date at which such heavy goods are so conveyed.

"I also undertake to construct upon the above named right of way, a good and sufficient road (to connect the public road with the pier). And also a proper and commodious pier for shipping and landing passengers and goods to the satisfaction of the secretary to the company, by the 10th day of June, 18:9, for the sum of 2001., 1007. of which is to be paid to me by the Ulleswater Steam Navigation Company on the 20th of May, and the re

maining 1001. when the road and pier are completed. "H. W. Askew.

"On behalf of the Ulleswater Steam Navigation Company I agree to the above in every respect.'

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2. In execution of the said agreement, the said H. W. Askew made and executed the said road and pier.

3. By a lease, dated the 18th of July, 1859, and made in pursuance of and for the carrying out of the said agreement, the said H. W. Askew, for the considerations therein mentioned, granted and demised to the defendants all that parcel of ground situate in the parish of Barton, in the county of Westmoreland, adjoining the Lake Ülleswater as then marked out, and intended for a pier and road then in progress of formation by the said lessor, provided always, and it was by the said lease expressly agreed and declared that the said pier should be used by the said lessees, their officers and servants, exclusively for traffic in light goods, or for the landing and departing of passengers from and to the boat of the said lessees, with or without passengers' luggage, and with or without the carriage of passengers' luggage, and with or without the carriage of passengers, and the horses or other animals used for drawing the same, and not for any other use or purpose whatsoever. This lease (a copy of which accompanies and is to form part of this case) is still subsisting. The road and pier therein mentioned were and are the road and pier agreed to be constructed by the said agreement of April, 1859.

4. The said pier or jetty was made and constructed by Mr. Askew, and paid for by the defendants pursuant to the said agreement. Part of the pier was made upon land belonging to Mr. Askew, and leased to the defendants as aforesaid. The remainder of it was made on the bed of the lake, which was and is the soil and freehold of the plaintiff. The foundations of that portion of the pier which extends into the lake, and which is 27 ft. 6 in. long, consists of piles driven into the soil or bed of the lake. The defendants, from the time of making of the pier or jetty in the year 1859, up to the present time, have used and still use t

for the purposes mentioned in the agreement and lease of 1859.

5. In June, 1860, the plaintiff commenced an action against the defendants for breaking and entering land of the plaintiff covered with water, being a part of Ulleswater Lake, and with steamboats of the defendants coming into and upon and sailing upon and over the said land covered with water, to and from a certain pier or jetty of and belonging to the plaintiff, and wrongfully causing persons to go upon the said pier or jetty, and there to embark on or disembark from the said steamboats, and wrongfully causing the said persons to sail in the said steamboats upon and over the said land covered with water. The defendants pleaded in that action to the whole declaration a plea of Not guilty," and also a plea that the land in which, &c., was not the land of the plaintiff; and for a third plea as to the whole declaration, except so far as it related to the acts complained of, in respect of, and as to and concerning the said pier or jetty, the defendants pleaded. that there was a common and public highway for all the liege subjects of our Lady the Queen to sail, navigate, pass, and repass upon the waters of that part of the lake, in the declaration mentioned, with boats, vessels, and steamboats, at all times of the year at their freewill and pleasure, and that the acts complained of and therein pleaded to were an use by the defendants of the said highway. The defendants by a fourth plea traversed that the said pier or jetty was the plaintiffs'. The plaintiffs joined issue upon all the said pleas, and also new assigned as to the said third plea, as to which new assignment the defendants pleaded "Not guilty," upon which issue was joined.

6. The said cause came on to be tried at the summer assizes of the year 1861, at Appleby, when a verdict on the issue joined upon the defendants' third plea was found in favour of the defendants, and a verdict as to all the other issues was found in favour of the plaintiff. A rule nisi was afterwards obtained by the defendants in the Court of Queen's Bench to set aside the verdict on the issues so found in favour of the plaintiff, and, instead thereof, to enter the verdict thereon for the de

fendants, pursuant to leave reserved at the trial, which rule was upon argument discharged. Judgment was thereupon entered accordingly, and, upon an appeal by the defendants to the Court of Exchequer Chamber, the decision of the Court of Queen's Bench in discharging the said rule was affirmed-See next page, note (1).

7. The land covered with water which is referred to in the aforesaid action of June, 1860, included that portion of Ulleswater Lake, which adjoins the land so leased by Mr. Askew to the defendants as aforesaid, and the pier or jetty also referred to in the same action is that portion of the said pier or jetty which extends into the said lake as herein before mentioned. The latter portion of the said pier or jetty was made and constructed without the plaintiff's consent, and against his will, and has never been removed and still remains as originally built.

8. If that portion of the said pier or jetty which so extends into the said lake as aforesaid was removed, the defendants would be able to bring their steamboats upon that portion of the lake which lies near to the land so leased to them by Mr. Askew as aforesaid, and so near to the said last mentioned land, that by means of a temporary stage or platform extending from the steamboats to that portion of the said pier or jetty which is built upon the said land so leased to the defendants by Mr. Askew, as aforesaid, they could disembark and land passengers and goods from such steamboats on the said land so leased to them by Mr. Askew, as aforesaid, and embark passengers and goods in such steamboats from the said last mentioned land, but in consequence of that portion of the said pier or jetty which extends into the said lake having been so made and constructed as aforesaid, and not having been removed, and remaining as it was originally built, the defendants are prevented from disembarking and landing and embarking passengers and goods as aforesaid, without using that portion of the said pier or jetty which so extends into the said lake as aforesaid.

9. The waters of the lake at the part thereof where the same adjoins the land so leased to the defendants as aforesaid,

are so shallow that it would be impossible for the defendants to bring their steamboats so near their land that they could land passengers, or take goods on board the said steamboats, directly from their said. land, without either a temporary or permanent stage or jetty or platform being placed over and across the bed of the lake between the defendants' land and the steamboats.

10. Since the judgment in the aforesaid action of June, 1860, was entered and affirmed as aforesaid, the defendants have on many occasions brought their steamboats upon the said lake near to the said land so leased to them by Mr. Askew as aforesaid, for the purpose of disembarking and landing and embarking passengers and goods from and upon such steamboats, upon and from the said last mentioned land, and because that portion of the said pier or jetty, which so extends into the said lake as aforesaid, had not been removed, but remained as originally built, so that without using that portion of the said pier or jetty for the purpose of landing and embarking passengers as aforesaid, they could not land and embark passengers and goods as aforesaid, they did upon the occasions aforesaid use that portion of the said pier or jetty for the purposes aforesaid.

11. The user by the defendants of that portion of the said pier or jetty which extends into the said lake as aforesaid, for the purposes and in the manner hereinbefore mentioned, was without the leave or consent of the plaintiff and against his will.

12. On the 18th day of July, 1867, the present action was brought in respect of the said use by the defendants for the purposes aforesaid, of that portion of the said pier or jetty which so extends into the said lake as aforesaid, at and during periods subsequent to the times to which the former action related.

The Court is to be at liberty to draw any inferences which a jury might draw.

The question for the opinion of the Court is, whether the said use by the defendants for the purposes aforesaid of that portion of the said pier or jetty which so extends into the said lake as aforesaid, is legally justifiable under the circumstances above stated.

If the Court shall be of opinion in the negative, then judgment shall be entered up for the plaintiff for 10l. and costs of

suit.

If the Court shall be of opinion in the affirmative, then judgment of nolle prosequi, with costs of defence, shall be entered up for the defendants.

Manisty (Forbes with him).-The action is maintainable. The defendants have no right to use the soil of the plaintiff in the way described in the case. The result of the former case of Marshall v. The Ulleswater Steam Navigation Company (1) was to establish the right of the plaintiff to the soil of the lake. It does not follow from the fact that the public have a right of way over the lake, that they have a right to land on the pier and cross and recross it.

[LUSH, J.-But how can the plaintiff maintain an action against the defendants for doing so? He maintains the pier and thus causes an obstruction to their right to use the lake. If he keeps it there, they have a right to land upon it.]

Still they have no right to do more than navigate upon the water, they have no right to use the land.

[BLACKBURN, J.-Is it not a necessary incident to their right to navigate the lake, that they should be able to pass over the land which is under that water? Suppose a man put a gate across a highway, could he maintain an action against a person who got over it, being unable to pass along the highway without doing so?]

It is submitted that the defendants commit a trespass in using the pier. It is true that the pier has become the property of the plaintiff, and that it is an obstruction to persons who would otherwise be able to pass along the surface of the water over that identical spot, but the plaintiff did not put it there. That was done by the unlawful act of the defendants. The only right of way which can be said to have been dedicated to the public, is the right of way over the surface of the lake. The defendants take advantage of their own wrongful act in putting up the ob

(1) 3 B. & S. 732; s. c. 32 Law J. Rep. (N.s.) Q.B. 139,

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