« EelmineJätka »
Clauses Consolidation Act 1845, stat. 8 & 9 Vict. c. 18, but not the same in terms. The clauses for the taking of land referred to in the above case were the following.
Sect. 51 gave power to enter upon and take lands for the purposes of the act, making satisfaction, and empowered the commissioners, for that purpose, to agree with proprietors, &c. Sect. 52 provided for conveyance of lands to the commissioners by parties under disability, &c.
Sect. 63. “And for the purposes of providing for the payment and application in certain cases of the purchase-money or compensation to be paid in respect of any such lands not belonging to parties under disability, be it enacted, That in the following cases (that is to say), if the owner of any such lands, or of any interest therein, on tender of the purchase-money or compensation either agreed or awarded to be paid, refuse to accept the same; or if any such person fail to make out a title to the lands in respect whereof such purchase-money or compensation shall be payable, or to the interest therein claimed by him, to the satisfaction of the commissioners, or if such owner be gone out of the kingdom, or cannot be found, or be not known, or refuse to convey or release such lands as directed by the commissioners, it shall be lawful for the commissioners to deposit the purchase-money or compensation payable in respect of such lands, or any interest therein, in the Bank of England in the name and with the privity of the Accountant-General of the Court of Chancery, to be placed to his account there to the credit of the parties interested in such lands (describing them so far as the commissioners can do), subject to the control and disposition of the said Court; and upon the receipt of such money the casbier of such bank shall give to the commissioners or to the party paying in such money a receipt for such money, specifying therein for what and for whose use (described as aforesaid) the same shall have been received, and in respect of what purchase the same shall have been paid in, and thereupon all the interest in such lands in respect whereof such purchase-money or compensation shall havo
been deposited shall vest absolutely in the commissioners." *164]
Sect. 71.(a) “And be it enacted, That when the commissioners shall *require to pur
chase any of the lands which by this act they are authorized to purchase or take, they shall give notice thereof to all the parties interested in such lands, or enabled by this act to sell and convey or release the same, or such of them as shall be known to the commissioners, and by such notice shall demand from such parties the particulars of their estate and interest in such lands, and of the claims made by them in respect thereof; and every such potice shall be in writing, and shall state the particulars of the lands so required, and shall state that the commissioners are willing to treat for the purcbase of the interest of such party in such lands, and as to the compensation to be made for the damage that may be sustained by him by reason of the making of the works authorized by this act.”
Sect. 72.(6) “And be it enacted, That if for one month after the receipt of such notice any such party shall fail to state the particulars of his claim in respect of any such land, or to treat with the commissioners in respect of his interest therein, or if such party and the commissioners shall differ as to the amount of the compensation to be paid to such party for any such interest, or for any damage that may be sustained by him by reason of the execution of the said works, the amount of such compensation shall be settled in the manner hereinafter provided for settling cases of disputed compensation."
Sect. 73.(c) “And be it enacted, That where, according to the provisions of this act, the commissioners are authorized to enter upon and take possession of any lands required for the purposes of this act, if the owner or occupier of any such lands, or any other person, refuse to give up tho possession thereof, or hinder the commissioners from entering upon or taking possession of the same, it shall be lawful for the commissioners to issue their precept under their hands to the sheriff to deliver possession of the same to the person appointed in such precept to receive the same; and upon the receipt of such precept the sheriff shall deliver possossion of any such lands accordingly; and the costs accruing by reason of the issuing and execution of such precept, to be settled by the sheriff, shall be paid by the persons refusing to give possession; and such costs, if not paid on demand, shall be levied by distress, and the sheriff shall issue his warrant accordingly."
Sect. 74.(d) “And for the purpose of making provision for settling cases of disputed com. pensation arising under this act, be it enacted, That if any difference shall arise, or if no agree
(a) Seo stat. 8 & 9 Vict. c. 18, s. 18.
ment can be come to, between the commissioners and the owners of any lands, or of any interost in
any such lands, taken or required for or injuriously affected by the execution of the powers of this act (including among such owners all parties by this *act enabled to sell or convoy lan is), as to the value of such lands, or of any interest therein, or as to the compensa- [*165 tion to be made in respect thereof, or if by 'reason of absence any such owner be preveated from treating, or if any such owner fail to disclose or prove his title to any such lands or any interest therein, or if by reason of any impediment or disability any such owner be incapable of making any agreement, conveyance, or release necessary for enabling the commissioners to take such lands, or to proceed in making the works authorized by this act, or if any such difference arise as to the amount of the damages occasioned to the lands by the temporary occupation thereof in the making of the said works, or otherwise in exercise of the powers given by this act, and for which any party may be entitled to demand compensation according to the provisions of this act, the amount of the compensation to be paid by the commissioners in every such case shall be settled by the verdict of a jury in manner hereinafter mentioned."
Sect. 76.(a) “And be it enacted, That where it shall be necessary to refer any such question to the determination of a jury by reason of any such difference as aforesaid, then, one month. at least before issuing their warrant for summoning a jury as hereafter provided, the commissioners shall give notice in writing to the party with whom such difference shall have arisen of their intention to cause such jury to bę summoned; and in such notice the commissioners shall state what sum of money they are willing to give such party for his interest in such lands, and for the damage to be sustained by him by the execution of the said works."
Sect. 78.(6) “And be it enacted, That in every case in which any such question of disputed compensation shall be required to be determined by the verdict of a jury, the commissioners shall issue their warrant to the sheriff, under the hands of two or more of them, requiring him to summon a jury for that purpose; and if such sheriff be interested in the matter in dispute, such application shall be made to some coroner of the county in which the lands in question, or some part thereof, shall be situate; and if all the coroners of such county be so interested, such application may be made to some person having filled the office of sheriff or coroner in such county, and who shall be then living there, and who shall not be interested,” &c.
Sect. 82.(c) “And be it enacted, That fourteen days' notice of the time and place of the inquiry shall be given in writing by the commissioners to the other party."
Sect. 85.(d) “And be it enacted, That such jury shall deliver their verdict for the sum of money to be paid for the purchase of the lands *required for the purposes of this act, or of any interest therein, belonging to the party with whom such question of disputed com- [*166 pensation shall have arisen, and also the sum of money to be paid for the injury done to the lands of any such party by the severance from such lands of the lands required by the commissioners, and also the sum of money to be paid by way of compensation for the damage occasioned to any such lands by the execution of the works, whether it be for damage sustained before the time of the inquiry, or for future damage, either temporary or permanent, or for any recurring damage of which the cause is then only in part obviated, and which cannot or will not be further obviated by the commissioners; and the sums of money to be paid for the injury dono by any such severance as aforesaid, or by way of componsation for any such damage as aforesaid, shall in every case be assessed separately from the value of the lands, or the sum to be paid for the purchase thereof, or of any interest therein."
Sect. 87.(e) “And be it enacted, That the sheriff before whom such inquiry shall be held shall give judgment for the purchase-money or compensation assessed by such jury; and the said Verdiet and judgment shall be signed by the sheriff, and being so signed shall be kept by the clerk of the peace for the parts of Lindsey in the county of Lincoln among the records of the quarter sessions for the said parts; and such verdicts and judgments shall be deemed records, and the same, or true copies thereof, shall be good evidence in all courts and elsewhere; and all persons may inspect the said verdicts and judgments, and may have copies thereof or extracts therefrom, on payment," &c.
(a) See stat. 8 & 9 Vict. c. 18, s. 38.
Reported by C. Blackburn, Esq.
The QUEEN v. The Inhabitants of TACOLNESTONE.
Reported, 12 Q. B. 157 (E. C. L. R. vol. 64).
*167] *BRIGGS v. The MERCHANT TRADERS' Ship Loan and
Insurance Association. Jan. 18. A vessel, the J. A., with cargo on board, abandoned by her crew at sea, was brought into
harbour by salvors. Plaintiff, who was owner of the J, A., applied to the Court of Admiralty, and obtained possession of the ship and cargo on entering into recognisance as a security for the whole salvage: and he effected an insurance intended to cover the proportion of the salvage he might have to pay under the recognisance. In the policy the subject matter of insurance was described as “average expenses per J. A." The vessel then sailed and was totally lost with the cargo on board. Plaintiff was obliged to pay the amount of his recognisance.
Held, in an action against the underwriters, 1. That the cargo was liable to contribute a rateable portion of the salvage: and that the
plaintiff, who had become liable to pay the whole salvage, had a lien on the cargo for that
rateable portion, and had consequently an insurable interest in the cargo. 2. That, in the policy, the description of the subject matter as average expenses was sufficient.
COVENANT. The declaration averred that the plaintiff was owner of the ship Joseph Alexander, lying at Yarmouth, on which were then goods previously loaded belonging to William Dawson and John Woods; and that there was due to the plaintiff, as such owner of the ship, by the owners of the goods in respect thereof as such owners, 7001., for certain average expenses, being the average expenses mentioned in the policy thereinafter mentioned, that is to say, for contribution to certain salvage of the ship and of the goods whilst the same were on board the ship, paid by the plaintiff to the salvors thereof: the declaration then averred that plaintiff, at the time of making the policy, up to the time of the loss, had a lien on the goods for the amount of the average expenses and contribution, and during all that time was interested in the goods, to wit, to the amount insured. The declaration then set out a policy of insurance under the seal of the defendants, in nearly the ordinary form, in which the policy was declared to be on average expenses per Joseph Alexander. The count then averred a total loss of the ship *168]
and goods; and that the plaintiff *thereby lost his lien on the
goods, and the sum so due for average expenses and contribution. Breach, non-payment.
Pleas, 1. Non est factum. 2. That there was not due or owing, in respect of the goods, to the plaintiff, for average expenses, the said sum or any part thereof, modo et formâ : 3. That the plaintiff was not interested in the goods or any part thereof, modo et formâ : 4. A traverse of the plaintiff having lost the sum, modo et formâ : on which issues were joined. There were other issues, of which the affirmative lay on the defendant, and on which nothing turned.
On the trial, before POLLOCK, C. B., at the Norfolk Spring assizes, 1848, it was proved that, before the policy was made, the Joseph Alexander had sailed, with the goods mentioned in the declaration on board, bound to Grimsby and Goole; she met with a collision, and was abandoned by her crew: she was found derelict; and the ship and cargo were brought safe into Yarmouth. The plaintiff, who was owner of the vessel, claimed her; and the Court of Admiralty ordered the ship and cargo to be given up to him, on his entering into a recognisance as a security for the salvage. The plaintiff then effected the policy, intending thereby to insure the sum hè might have to pay under the recognisance. The ship and cargo were totally lost by the perils of the sea, , on the voyage from Yarmouth to Goole; and the plaintiff under his recognisance was obliged to pay 7001. to the salvors. The Lord Chief Baron expressed an opinion that the plaintiff had an insurable interest, as having a lien : and the plaintiff had a verdict.
In Easter term, 1848, Prendergast obtained a rule *nisi for a new trial on the ground of misdirection, or to arrest the judg
[*169 ment. On this day and January 22d, (a)
Byles, Serjt., Palmer and Unthank, showed cause.—The sole question is, whether the plaintiffs had or had not an insurable interest in the goods. It is not necessary that the assured should have any actual property, either legal or equitable, in the thing insuredbe; all that is required is, that they should have such an interest in the safety of the thing as to make the insurance not a gambling speculation. How else could a man insure expected profits, as he may do; Grant v. Parkinson, 3 Doug. 16, Barclay v. Cousins, 2 East, 544, Henrickson v. Margetson, 2 East, 549, note (a), Eyre v. Glover, 16 East, 218? or captors insure before condemnation, as in Stirling v. Vaughan, 11 East, 619 ? or a factor in advance insure before he has received the goods, as in Wolfe v. Horncastle, 1 B. & P. 316? In this last case BULLER, J., says :(b) “I agree that a debt which has no reference to the article insured, and which cannot make a lien on it, will not give an insurable interest. But a debt which arises in consequence of the article insured, and which would have given a lien on it, does give an insurable interest." The principle is laid down by LAWRENCE, J., in Lucena v. Crawford, 2 New Rep. 269. He says :(c) “ To be interested in the preservation of a thing, is to be 80 circumstanced with respect to it as to have benefit from its existence, prejudice from its destruction." In the present case, however, the assured had an actual *lien on the goods; and, that being so, the case is clear; Robertson v. Hamilton, 14 East, 522. The facts
[*170 appear on the declaration, and were proved at the trial. The reward due to salvors for what they did for the benefit of the whole is, by the
(a) Before Lord DENMAN, C. J., PATTESON, COLERIDGE, and WIGHTMAN, Js.
maritime law, to be raised by general contribution from all who reaped the benefit ; 2 Arnould on Marine Insurance, p. 915, Cox v. May, 4 M. & S. 152, 159. For this reward, partly due by the owners of the goods, the salvors have a lien by the maritime law; Abbott on Shipping, p. 556, 8th ed., Hartfort v. Jones, 1 Ld. Raym. 393, Baring v. Day, 8
, East, 57: and, in this country, stat. 9 & 10 Vict. c. 99, s. 19, enacts that the Court of Admiralty shall detain the saved ship, and the officer of customs the goods, till the salvage is paid or secured. The plaintiff, who was the ship-owner, therefore, could not redeem his ship without paying as he did the debt of the owner of the cargo. He had, on that ground, an equitable lien on the goods redeemed, as in equity he stood in the place of those from whom he redeemed them, and an equitable lien is enough to support an averment of interest. But, further, it was necessary to redeem the ship and cargo in order to carry on the adventure ; the payment made for that purpose was general average. The ship-owner has a lien for general average. In Abbott on Shipping, p. 507, 8th ed., Lord TENTERDEN states the practice to be so: and in Scaife v. Tobin, 3 B. & Ad. 523, 528 (E. C. L. R. vol. 23), both he and PARKE, J., state the law accordingly. Lord Eldon recognises it in Hallett v. Bousfield, 18 Vesey, 187; and it has recently been acted upon in
America, in the United States v. Wilder.(a) *However, it is *171]
unnecessary to consider this, as the lien here is not traversed. Prendergast and O'Malley, contrà.-If the meaning of the averment of interest is that the plaintiff was interested by virtue of the lien, the traverse of the interest puts in issue the lien as involved in that averment; Dunstan v. Tresider, 5 T. R. 2: or, if not, the declaration is bad in arrest of judgment, as not showing how the loss of the goods was a loss within the policy. The questions, however, made at the trial were, whether the sum said to have been lost was properly described as average expenses, and whether the plaintiff had a lien on, and thereby an interest in, the goods, and whether he could be said to have lost the sum. Sal. vage is not general average. It cannot be said to be a voluntary sacrifice: and that is an essential ingredient in general average; Covington v. Roberts, 3 New Rep. 378, 9, Power v. Whitmore, 4 M. & S. 141, 149. Neither had the plaintiff a lien. It is not necessary to inquire whether salvors had a lien by the common law; for, since stat. 9 & 10 Vict. c. 99, the possession is not in them but in the Court of Admiralty. And, though the ship-owner could not regain his ship without securing the salvage due in respect of her, he need not have redeemed the cargo His doing so was a voluntary act: and, as Yarmouth is a home port and he might have consulted the owners of the goods, it is somewhat doubtful if there was even a debt from them for this money as paid at their request. Even if it was so paid, that gives no lien; Hussey v. *172]
Christie, 9 East, 426. *The passage cited from Abbott on Shipping, p. 507, 8th ed., and Hallett v. Bousfield, 18 Vesey, 187,
(a) Cited, 2 Arnould on Insurance, p. 949.