Page images

KEATING, J. (on Nov. 25) delivered the defendants, who had no longer any interest followin: judgment of the Court (5). in them, or responsibility to the vendees

This was a special case stated between in respect of them in case of fire. But it the parties, for the purpose of having it was contended on behalf of the defenddecided whether the plaintiffs can recover ants that, even supposing that to be the from the defendants a sum of 6361.138.7d., case, still the policy being a floating alleged by them to have been paid to the policy covered the goods in question as defendants in excess of the sums due on goods in trust, and that therefore the certain policies of insurance, and which plaintiffs were liable to pay their full value, the defendants agreed, in the event of that and the cases of Waters v. The Monarch Inallegation being well founded, to repay to surance Company (1) and The London and the plaintiff's. The policies in question North Western Railway Company v. Glyn were dated the 13th of October, 1865, and (2), were relied on in support of that conin consideration of an annual premium, tention. In those cases goods held by the the plaintiffs insured from loss or damage plaintiff's as bailees were insured by them by fire the property thereinafter described, under policies, the conditions of which " not exceeding the sum specified as ap- provided that goods held in trust would plicable to the several articles, viz., 3,5001. not be covered by the policies unless they on merchandise (jute, petroleum and its were insured as such. The goods accordproducts excepted), the assured's own, in ingly were insured, expressly as goods trust or on commission for which they are re- held in trust by the assured. The offices sponsible, in or on all or any of the ware- contended that as the plaintiffs, as bailees, houses, vaults, ships, &c," or other places had no insurable interest in the goods specified, and certain wharves, including beyond their liens respectively, they Beale's Wharf.

could only recover to the amount of such Whilst the policies were in force a fire liens. But the Court held in each case occurred at Beal's Wharf, in the policies that the plaintiffs were entitled to recover mentioned, and consumed certain chests to the full amount insured, and intimated of tea, which form the subject of the pre- that the excess beyond the personal sent litigation. Those teas had been de- interest of the assured would probably posited in bond by the importer with the be held in trust for the parties really wharfinger to whom Beal's Wharf be- interested, though unaware of the insurlonged, and who issued warrants for the ance having been effected. If, therefore, same, deliverable to the depositor or his the words in the present policies had been assigns by indorsement thereon. The similar to those in the policies referred to, defendants had purchased the teas from we should have thought the cases were authe importer, who indorsed to them the thorities in favour of the defendants' view, warrants in blank. The defendants, before notwithstanding that they had no interest the fire occurred, had resold the teas in even amounting to a lien upon the goods specified chests to customers, and had in question, but it will be observed the been paid for the same; they held, how- wording in the present policiesis essentially ever, the warrants on behalf of such different, for whilst in the cases referred customers, but merely for the convenience to the insurance extended to goods “in of paying, if required to do so, the trust or on commission” generally, in the charges necessary to clear the teas, such present case it is expressly limited to as custom-house dues and rent payable goods “in trust or on commission for by these vendees.

which they(the assured) “were responUnder the circumstances, therefore,

sible.In The London and North Western stated in the present case, we are of Railway Company v. Glyn (1), Erle, J., opinion that before and at the time of the and Hill, J., had thrown out that if insurfire, the property in the teas had passed ance companies wished in future to limit to the vendees, and that the teas remained their responsibility to the responsibility of at their risk, and not at the risk of the the assured, they must employ express

words to that effect. It seems to us that (6) Willes, J., Keating J., and Brett, J. the present plaintiffs have done so in these

[ocr errors]



policies, and have expressly limited their

This was

an action of ma ndamus, liability to such goods as were held in brought to compel the defendant to issue i rust by the assured, and for which they his precept for the assessment of comwere responsible.

pensation claimed by the plaintiff, and It follows that the goods in question, to take all the necessary steps to have or which the assured were not respon.

such compensation duly assessed, and for sible, were not covered by the policy, and damages for his having mide default in consequently that the plaintiff's are en- the issuing of such precept, and in the titled to the judgment of the Court. taking of such necessary steps; and by Judgment for the plaintiffs. the consent of the parties and the order of

the Honorable Mr. Justice Montague Attorneys–G. M. Clements, for plaintiffs ;

Smith, dated the 7th day of December,
Willoughby & Cox, for defendants. in the year of our Lord 1870, the follow-

ing Case was stated for the opinion of
the Court, without pleadings.

The plaintiff was on the 25th day of
January in the year of our Lord 1869,
tenant of the whole and occupier of a
portion of a house and premises, forming

No. 14, Black Horse Alley, in the parish 1871.

of St. Bride, London, for the remainder Nov. 20.

of a term exceeding one year, under

and by virtue of the following agreeCompensation— JIolborn Valley Improve

ment.ment Acts-- London (City) Improvement Act, 1847Lands Clauses Consolidation

“ Agreement entered into this 24th day

of June, 1867, between Edwin Nixon, of Act, 1845— Time from which Tenant's

390, Osford Street, in the parish of St. Interest in Property is to be computed.

Ann's, Westminster, as agent for and on The Holborn Valley Improvement Act, behalf of Mr. William Ward and others, 1867, which empowers the Mayor, Sc., of of the one part, and James Walter Tyson, London to acquire certain houses, Soc., in- of 15, Black Horse Alley, in the parish of corporates the London Improvement Act, St. Bride and in the city of London, of 1847, which empowers the Mayor, Sc., to take the other part, as follows: The said lands, fc., after six months' notice, to treat for Edwin Nixon doth agree to let, and the the purchase, and in case of dispute to issue said James Walter Tyson doth agree to their precept to impanel a jury to assess the take the house and premises situate compensation, and directs persons in poses- and being No. 14, Black Horse Alley, in sion to give up possession after six months' the said parish of St. Bride, for the term notice; and also incorporates the 121st of three years from Midsummer-day, 1867, section of the Lards Clauses Consoliilation at the yearly rent of twenty-four pounds, Act, 1845, which directs that where the in equal quarterly payments, and with tenant's interest does not exceed a tenancy this understanding that the rent should be for a year, or from year to

the com-

paid one quarter in advance, and should pensation shall be assessed by justices. The the said James Walter Tyson fail to pay Dayor, &•c., gave a tenant notice that they any quarter's rent within one month after intended to take his house, that they were the commencement of the following quarwilling to treat in respect thereof, and that ter, then this agreement shall be conhe must quit in six months :-Held, that sidered null and void, the same as if no for the purpose of determining whether his agreement had been entered into, and that compensation was to be assessed by a jury the tenancy shall relapse into a weekly or by justices, the length of his interest tenancy, and that a week's notice shall be must be computed from the date of the sufficient on either side for giving up or notice, and not from expiration of the six retaining possession of the said premises. months.

And it is further agreed that the said

Edwin Nixon doth bind himself to pay all following notice to treat for the said prerates and taxes, and to do all repairs he mises. may think requisite to have done to keep “ The Holborn Valley Improvement (Adthe said house and premises in a fit state ditional Works) Act, 1867. of tenantable repair. And lastly, it is “To James Walter Tyson, and to all and mutually agreed that after the expiration every other person and persons having or of this agreement, the tenancy shall con- claiming any estate or interest in the tinue as a yearly tenancy at the same rent hereditaments and premises hereinafter and same mode of payment as before mentioned or any part thereof. stated, and that six months' notice be “Pursuant to and by virtue and in exsufficient on either side for giving up or ercise of the powers and provisions conregaining possession of the said house and tained or incorporated in an Act of premises.

Parliament, having the short title of “The ** Signed, Edwin Nixon.

Holborn Valley Improvement (Additional James Walter Tyson. Works) Act, 1867,' and by order and on “Witness, W. Tyson.”

Upon the 25th day of January, in the lands, and pull down and remore houses, at year of our Lord, 1869, the Corporation

the expiration of six months after notice in of London, as promoters of the Holborn

writing of the intention to take or use them Valley Improvement Additional Works Act, 1867 (1), served on the plaintiff the

given to the owner or occupier; by s. 14 it provided

that no house was to be taken or used except (1) The Holborn Valley Improvement (Additional those in the schedule ; by 8. 17 it allowed the Works) Act, 1867 (30 Vict. c. lv.), by sec. 14 incor- Mayor, &c., to treat for the purchase of any

lands porated the London (City) Improvement Act, 1847, (which included houses) authorised to be taken ; except ss. 3, 19, 42-45, 50-55 inclusive, the Lands by s. 19 it provided, that so much of the Lands Clauses Consolidation Act, 1845, except the pro- Clauses Act, 1845, as relates to the purchase of visions for purchasing and taking lands otherwise lands otherwise than by agreement, was not to be than by agreement, and ss. 127-132 inclusive, incorporated; by s. 20 it enacted, that on or before and the Lands Clauses Consolidation Acts Amend- the expiration of a month after notice of the inment Act, 1860, except in so far as repealed, altered, tention to take or use land, particulars of the raried, or inconsistent; by sec. 15 it specially in- estate, &c., improvements, &c., injury, &c., corporated s. 121 of the Lands Clauses Consoli- should be given by those entitled to be recomdation Act, 1845; by s. 17 it excluded s. 91 of pensed for them, and the sum they were willing the Lands Clauses Consolidation Act, 1845; by to receive; by s. 21 it provided, that when parties s. 18 it provided that so much of s. 34 of the refused to accept satisfaction or to treat, &c., the Improvement Act of 1847, as provides that pos- Mayor might issue his precept for empanelling a session should not be delivered till payment or jury; by s. 32 it provided, that in case of differdeposit of purchase or compensation money should ence between the Mayor, &c., and owners, and be made, as directed by the Lands Clauses Con- occupiers, &c., as to the amount of damages to solidation Act, 1815, should not apply, and no such property if the claim be not over 501., the possession should be required till it was deposited amount was to be determined by two justices; or paid in another specified manner; and by and by s. 34 it provided that all persons in actual s. 29 it incorporated ss. 19-31 inclusive, and s. 33 possession of lands should at the expiration of of the Holborn Valley Improvement Act of 1864. six mouths, after notice in writing, give up pos

The London (City) Improvement Act, 1847 session, and if they refused, the Mayor, &c., migh (11 & 12 Vict. c. cclxxx.), by sec. 1 incorporated issue their precept to the sheriffs to deliver posthe Lands Clauses Act, 1845, so far as its pro- bession, but that possession should not be devisions were not expressly varied or excepted livered till payment or deposit of the purchase or by the Act; and by s. 13, for the purposes of the compensation money, as directed by the Lands Act, allowed the Mayor, &c., to take and use Clauses Consolidation Act, 1846.

[ocr errors]

behalf and as agent of the mayor, alder- which such amount of money has been
men, and commons of the city of London computed and made up. And in case you
in common council assembled, and of the have a greater interest in the said heredi-
committee to whom the powers contained taments and premises than as tenant-at-
or incorporated in the said Act are dele. will, and claim compensation in respect of
gated, I do hereby give you and each and any unexpired term or interest under any


notice that it is the inten. lease or grant of the lands or heredita-
tion of the said mayor, aldermen, and ments so required as aforesaid, I do hereby
commons in common council assembled, further require you to produce the lease
and of the said committee, to take and use or grant in respect of which such claim is
for the purposes of the said Act the houses, made, or the best evidence thereof in your
shop, and offices, distinguished by a red power.
colour on the accompanying plan, with the Dated this twenty-fifth day of
appurtenances thereto belonging, which

January, 1869. said premises are described in the plan

"Ferd. Brand, Guildhall, London, and book of reference referred to in the

Comptroller of the Chamber said Act, as Nos. 167 and 168, in the

of the said City." parish of Saint Bridget, otherwise Saint “In order to assist you in preparing a Bride, in the city of London. And I statement of your claim a printed form, to further give you notice that the said be filled up and signed by you, accommayor, aldermen, and commons, and the panies this notice.” said committee are willing to treat and Upon the 19th day of February, 1869, agree with you for the purchase of your

the plaintiff sent to the Corporation & estate and interest in the said heredita- statement of the amount of his claim, ments and premises, and for the compen

and the nature of his interest in the said sation to be made for the injury or damage premises. (if any) that may be sustained by you on The plaintiff was in occupation of the account of the execution of the said Act. premises at the date of the commenceAnd I do hereby further give you, the ment of this action, 3rd of November, person or persons in the possession or 1870. occupation of the above-mentioned pre- The necessity for a formal demand on mises or any of them or any part thereof, the defendant to perform his alleged duty notice, and require you at the expiraton was waived before action. of six calendar months from and after No objection of form is to be taken on the giving of this notice, peaceably and either side. quietly to deliver up the possession of the The question for the opinion of the said premises to me, the person duly Court is, whether the plaintiff at the date authorised to take and receive the same, of the issuing of the writ was entitled or to such other person or persons as may at

to maintain this action. any time hereafter be duly authorised for If the Court shall be of opinion in the that

purpose. And I do hereby require affirmative, then judgment with costs of you on or before the expiration of one suit is to be given for the plaintiff, that a month next after the giving of this notice, writ of mandamus do issue to the de. to deliver at my office a statement in fendant to issue his precept in respect of writing of the particulars of the estate the said lands pursuant to the statutes, and interest to which you claim to be en- and to do all acts, and take all necessary titled in the said hereditaments and pre- steps, for the purpose of having the commises, and of the amount of the sum of pensation to be paid to the plaintiff asmoney you are willing to receive in satis. sessed by a jury, such jury also to assess faction or recompense for the value of the damages, if any, which would be such estate and interest, and as compen- recoverable in the action of mandamus. sation for any improvements or fixtures, If the Court shall be of opinion in and for any injury or damage that may be the negative, then judgment of nol. pros. sustained by you on account of the execu- with costs of suit, shall be entered up for tion of the said Act, and of the manner in the defendant.

W. G. Harrison, for the plaintiff.—The ciding the tribunal the expiration of the question in dispute is whether the plain- notice is to be regarded. It is admitted tiff is entitled to have compensation that the date of the notice to treat is the assessed by a jury under The London important date under the Lands Clauses (City) Improvement Act, 1847, section Consolidation Act, but the local Act here 21, or by justices under the Lands Clauses throws the period forward six months. Consolidation Act, 1845, section 121. And Under the sections of the former Act the other side contend that the length of after twenty-one days the matter is ripe, the plaintiff's interest is to be calculated and it was decided that the time of notice from the expiration of the six months' there binds, because afterwards a contract notice, and that if so calculated it is so of vendor and purchaser exists, attaching short as to bring it within the latter sec- to the then existing interest, and the mation, which provides that where the interest chinery for turning out might be put in is not greater than a tenancy for a year,

force and effect it shortly-Sparrow v. or from year to year, two justices are to The Oxford, Worcester, and Wolverhampton adjudicate. First, an equitable interest Railway Company (7), whilst here there is sufficient Sweetman v. The Metro- is a delay of half a year. Suppose a politan Rail. Co. (2), and looking to the notice given of intention after six months agreement the plaintiff's interest was for to give notice to treat, then, apart from more than a year even from the end of statutory provision, the interest would the six months' notice. And, secondly, not be taken as from the beginning of whether this be so or not, the date of the the notice, and the only effect of the local notice determines the tribunal, in which Act is to make this a contract to take at a case the plaintiff clearly has sufficient future time. The only power here to take interest to exclude the jurisdiction of the is given by section 13 of the local Act justices. The notice under the Lands which uses the word “intention,” and Clauses Consolidation Act has always reading this with section 34 as to six been held to put the parties in the same months' notice, the effect is that the position as vendor and purchaser, to statute means that six months' notice make a complete contract, and to bind of intention to take is to be given, that as to value from that time, though as

the authorities are bound to take then, between heir and executor it does not that the contract is for an interest turn the realty into personalty-Hodges existing at this future time, and that on Railways, i79–181; Salisbury v. The that time is to be the test as to the Great Northern Railway Company (3); compensation and tribunal. Nothing in

. Haynes v. Haynes (4); Stebbing v. The Morgan v. The Metropolitan Railway ComMetropolitan Board of Works (5). And pany (6) militates against this view. As as respects 11 & 12 Vict. c. cclxxx. s. 34, respects the other point, if the Court be the words of the section shew that it was against the present one, it is unnecessary contemplated that the assessment should to argue it. be made before the notice to quit elapsed, a notice which, according to Morgan v. WILLES, J.-No satisfactory distinction The Metropolitan Railway Company (6),

has been shewn on behalf of the defend. is binding; and, consequently, the same ant. The notice here incorporated both rule applies here as under the Lands a notice to give up possession after six Clauses Consolidation Act, and the date months, and a notice to treat, and since of the notice is what must be looked to. Morgan v. The Metropolitan Railway Co. Thesiger, for the defendant.--For de- (6) it must be taken for it is a decision to

that effect—that notice of intention to (2) i Hem. & M. 543.

take possession after six months involves (3) 17 Q.B. Rep. 840; s. c. 21 Law J. Rep. an obligation to give notice to treat, and (s.s.) Q.B. 185.

it may be therefore that though this (4) 30 Law J. Rep. (x.s.) Chanc. 578.

notice incorporates both, a notice to treat (5) 40 Law J. Rep. (N.s.) Q.B. 1.

(6) 37 Law J. Rep. (N.s.) C.P. 265 ; 8. c. 38 (7) 9 JIare 436; s. c. 21 Law J. Rep. (N.s.) Law J. Rep. (x.s.) C.P. 87.

Chanc. 731. New SERIES, 41.-C.P.



« EelmineJätka »