Q. B.] SOMES AND OTHERS v. JENKINS. if the disobedience of the order was by the servant | Attorney-General v. Siddon, 1 Cr. & J. 220; R. v. Medley, 6 C. & P. 292, were cited. Poland contra-The app. is not liable either criminally or penally, unless he wilfully disobeys the order. The mens rea is necessary, as was pointed out in Hearne v. Garton, 28 L. J. 216, M. C. Brown was not called on to reply. COCKBURN, C. J.-This conviction is good, and must be sustained. As at present advised I think that, unless knowledge of this order had been brought home to the app., he could not be convicted. I quite agree that there are cases in which persons may be liable for the fault of their servants; but this is not a case of that kind. It is said that these are orders made on most pressing emergency, and therefore must be obeyed at once, and the master may be absent or abroad and should leave some one in authority to obey; but it is not necessary to decide that point here, as the justices have found that the app. had knowledge of the order, and that it was not obeyed by him within reasonable time. MELLOR, J.-I also think that the conviction can be supported on the ground suggested by my Lord; but further, I think there is power to make an order in persons in charge of the premises, and the intention of the rule is that "shall obey "9 means "shall be responsible for obedience" of any order. This case comes within the rule stated by Bayley, B. in Attorney-General v. Siddon, 1 Cr. & J. 220: "This is a case in which to my mind the act of the servant is to be considered as an act done in the master's business, and within the scope of the authority probably given by the master to the I cannot agree as to the necessity for the mens rea, as this is simply a penalty for breach of a sanitary regulation. servant." SHEE, J.-I think the conviction ought to be affirmed for the reasons stated by my Lord. Conviction affirmed. Friday, June 1. SOMES AND OTHERS V. JENKINS. T., a shipbroker, engaged shipping room in the plts.' ship name the freight. [Q. B. By the custom of the port the shipowner may retain the bills of lading until payment of the freight, when the freight is made payable there, or may part with them, and then the shipper has two months' credit from the sailing of the ship. After the payment to T., and before the two months' credit had expired, T. stopped payment : Held, under the circumstances that deft. was liable to the plts. for the freight. This action was brought to recover 1081. 5s. 7d. for freight of 330 hogsheads of beer from London to Bombay, per ship Star of India, and primage thereon. The plts. are shipowners of London, and the deft. is a brewer at Lambeth, trading as Goding, Jenkins, and Co., who had contracted with the Indian Government to supply beer at Bombay, Kurrachee, and Madras. On the 14th Sept. 1863 a shipowner and broker named Thomson agreed with the deft. to provide ship room for the conveyance of the beer at 28s. per tun of four hogsheads and 5s. primage, payable in London at two months after the sailing of the vessel. The plts. did not know of that agreement, but believed Thomson was acting as broker for the deft. in the usual way. Part of the beer was carried in ships belonging to Thomson and part in ships in which he engaged ship room. On the 5th July 1864 Thomson engaged shipping room in the Star of India for 330 hogsheads of beer at 25s. tun, freight payable here. He sent to the deft. the plts.' card as to the sailing of the ship without informing him of the rate of freight, but intimating the number of hogsheads he had engaged room for. When freight is payable here the shipowner may require settlement of the freight before parting with the bill of lading for the goods shipped, if he be not satisfied with the credit of the shipper. On the 11th July the deft. shipped the 330 hogsheads of beer, and took the mate's receipts for them, which were forwarded by the deft. to Thomson. They stated the goods to have been shipped by the deft.'s firm. A set of bills of lading in a printed form stating the shipment to be by the deft. were sent by deft. to Thomson, who having filled up the blank, sent the same to the plt.'s brokers for signature by the captain. The captain's signature was procured and the brokers made out the freight-note: GODING, JENKINS, and Co., The bills of lading so signed and the freight-note were taken up by Thomson and exchanged for the mate's receipts which were handed by him to the plt.'s brokers. Thomson then forwarded the bills of lading to the deft. the cargo, and the beer was delivered to the indorsees of the bills of lading from the deft. The ship sailed and duly arrived at Bombay with On the first Saturday after the two months from the ship's sailing, application was made to Thomson for the freight, and as he did not pay afterwards to the deft., who refused to pay on the ground that he had paid the amount of the freight note to Thomson. The freight note sent by the plts.' brokers to Thomson, was not sent on by him to the deft., but instead thereof another made out by Thomson as follows: PATRICK THOMSON and Co. 115 10 0 5 15 6 £121 5 6 [C. P. COURT OF COMMON PLEAS. Reported by W. MAYD and W. GRAHAM, Esqrs, Barristers-at-Law. Monday, June 4. CONNELLEY v. BREMNER. The deft. paid that freight to Thomson on 1st Aug. Practice-Time to plead-Signing judgment where 1864, but plts. had no knowledge of this. time to plead expires on Saturday-R. G. E. T. 1856. Bovill, Q. C. (T. Jones with him) for the plts., and Mellish, Q. C. (Cohen with him) for the deft. : Sweeting v. Pearce, 5 L. T. Rep. N. S. 79. BLACKBURN, J.-I am of opinion that the plts. are entitled to recover this freight from the deft. If Thomson had in point of fact been acting as broker, and the deft. was his principal, there could be no doubt about the plts.' right to recover. But in Sept. 1863 there was an agreement between Thomson and the deft., by which Thomson engaged to find shiproom at the rate of 28s. per tun for a quantity of beer to be supplied by the deft. The fact of this agreement having been made was not known to the plts. when Thomson agreed for sending out the beer by the ship in question. The deft. then shipped the beer in plts.' ship, and took the mate's receipts. After that he sends the mate's receipts and bills of lading in which his name appears as the shipper of the goods to Thomson, who fills up the rate of freight he had contracted for, and sends them on to the plts.' brokers to procure the captain's signature. The bills of lading with the captain's signature and a freight-note are then sent to Thomson; but that freight-note is not brought home to the knowledge of the deft. By the usage of London, when freight is payable in London, the shipowner is not bound to give up the bills of lading, but may retain them until the freight is paid if he be not satisfied with the credit of the shipper, or he may part with them, and then two months' credit for payment of the freight is allowed. It was said that the deft. was not cognisant of this usage. It is not, however, necessary to decide whether that circumstance is material or not, because by law the shipper of goods at a particular port is to be held to deal with the shipowner according to the usage and custom of the port, and the shipowner has a right to treat the shipper as if he knew the usage and custom. It would be most inconvenient to hold otherwise, and the business of a shipowner could scarcely be carried on if he had a right to charge those persons only who might know, and not those who did not know of the custom and usage of the port. The deft. took back the bills of lading in this case, and paid the freight to Thomson without making inquiry of Thomson about the matter. As it turned out Thomson stopped payment. Under the circumstances, I think the plts. have a right to say to the deft. that they parted with the bills of lading to him, taking his promise that he would pay the freight, and, therefore, that they are entitled to recover. By R. G. E. T. 1856 it is ordered that service of pleadings shall on Saturday be made before two p.m., and if made after two p.m. the service shall be deemed as made on the following Monday. Saturday being the last day for pleading, and no plea being delivered at two o'clock, the plt. between two and five o'clock signed judgment, and at five o'clock the deft. delivered a plea: Held, that, notwithstanding the above rule, the deft. had all Saturday to plead, and the plt. was not entitled to sign judgment till the opening of the office on Monday morning. This was an action to recover a seaman's wages, and the only question raised on this rule was whether or not judgment had been signed too soon under the following circumstances: An order having been made by Willes, J. at chambers that the deft. should have five days to plead, and should take short notice of trial, the deft. took out a summons for further time, and on his stating that he had sent a cheque to the plt. at Liverpool, and was only waiting to see if he would take it as part payment, Willes, J. on the 2nd May made an order that he should have until a day after the cheque was returned, or taken in part payment, to plead, and should take three days' notice of trial. The cheque was returned on the 3rd May, and received by the deft.'s attorney on the 4th, which was a Friday. On the following day (Saturday, May 5) between two and five p.m., the plt. signed judgment, and at five p.m. the deft. delivered his pleas. On the 8th May the deft. took out a summons to set aside the judgment, and subsequent proceedings for irregularity on the ground that he had pleaded within the time allowed, and on the 9th May Byles, J. ordered the judgment and subsequent proceedings to be set aside on pay. ment of costs, and the deft. paid to the plt. 27. 5s. 6d. taxed costs. tained a rule calling on the plt. to show cause why Sir G. Honyman, for the deft., subsequently obthe order of Byles, J. should not be amended or varied by directing the judgment signed by the plt. to be set aside with costs to be paid by the plt. to the deft., and why the plt. should not refund to the deft. the taxed costs paid to him in pursuance of the said order. Against this rule, Williams now showed cause.-By R. G. E. T. 1856, it is ordered that "service of pleadings, notices, summonses, orders, rules, and other proceedings shall be made before seven o'clock p.m. except on Saturdays, when it shall be made before two o'clock p.m. If made after seven o'clock p.m. on any day except Saturday, the service shall be deemed as made on the following day, and if made after two o'clock p.m. on Saturday, the service shall be deemed as made on the following Monday." Therefore the plea must be taken as having been delivered on Monday, and as the deft. was bound to deliver it before two o'clock on Saturday, the plt. was entitled to sign judgment. [ERLE, C. J.He has all day on Saturday to plead, and Saturday is not curtailed because the plea clerks have left.] If we were not entitled to sign judgment on Saturday we might be thrown over the sittings. The deft. has taken the benefit of the order of Byles, J., and has acted upon it, and I submit that he is therefore estopped from coming to set it aside now. First, I submit that the judgment was regular, as it was signed after the time to plead had expired, and before the plea was actually delivered; and, secondly, that as they have taken the benefit of the order and acted upon it, they cannot come now to set it aside. Sir G. Honyman, in support of the rule, was not called upon. ERLE, C. J.—I think the rule of practice is laid down generally in 1 Chitty's Archbold's Practice, p. 246, that "if the defts. do not plead on or before the day on which the time expires, the plt. may sign judgment on the opening of the office on the morning of the following day, unless in the meantime and before the signing of it the deft. has delivered a plea." If we apply those terms literally, the deft. had all day on Saturday to plead, and if he omitted to plead on Saturday, the plt. might sign judgment at eleven o'clock on Monday morning. That is the general rule, and the order of Willes, J. amounted to this, that the deft. should have one whole day to plead after the cheque was returned, and I think he had all day on Saturday. Then there is this rule, that pleas must be delivered before two o'clock on Saturday. The plea was not delivered at two o'clock, and the plt. thereupon signed judgment on that day before two o'clock, and before the plea was delivered, at about five. I am of opinion that he had no right to sign judgment on that day. We think that the fragment of a day given to the plea clerks on Saturday is given to them, and does not alter the rights of the parties; therefore I think the plt. had no right to sign judgment till eleven o'clock on Monday. Then it is said that the deft. took advantage of the order of Byles, J., and acted upon it, and that he therefore cannot come now to get back his costs. But I think that, as that order was made out of term time, and as unless the judgment had been set aside a fi. fa. would have issued at once, the deft.'s advisers did not acquiesce in the terms of that order, but accepted them under compulsion, in order to stop execution, and they afterwards came to this court as soon as they could. I think, therefore, that the deft. should have back the costs he has paid; but all we award is, that he shall have back those costs. WILLES, J.-I am of the same opinion. I think the rule was not intended to alter the general rule of practice as stated in Chitty's Archbold. KEATING, J.-I am quite of the same opinion, but I should not be disposed to go further than what has been stated by the Chief Justice, viz., that we ought not to give costs, but that the deft. should get back the costs he has paid. When a party has Saturday to plead, judgment cannot be signed on that day. M. SMITH, J.-I am of the same opinion; but had I been at chambers I should have felt a difficulty in acting otherwise than Byles, J. did. [Ex. COURT OF EXCHEQUER. Reported by H. LEIGH and E. LUMLEY, Esqrs., Barristersat-Law. ERRATUM-In the case of Coombs v. Dibble, reported supra, p. 415, it should have been stated in the note at the end of the case that the court were of opinion that on the point of law reserved the rule should be made absolute. Wednesday, May 2. WIGENS v. PICKWICK. Pleading-General release in an assignment for benefit of creditors-Plea of in action on joint and several note-Replication that the note was not included in the release-Particular recital restraining general words -Effect of the release. To an action on a joint and several promissory note against one of the makers, the deft. pleaded a general plea of release. The replication set out the release, which was contained in a deed of assignment to a trustee for the benefit of creditors, made prior to the B. A.1861, wherein was contained a recital that the debtor (the deft.) was indebted to his several creditors in the sums set opposite their respective names in the schedule thereunder written, and it then averred that the note declared on was not, nor was it intended to be, included in the sum set opposite to plt.'s name in the said schedule, or in the release, and that no payment on account of the said note had ever been made to the plt. under the deed: Held, notwithstanding, that the effect of the deed was to release the note declared on. Declaration on a joint and several promissory Feb. 1865, for 100%. at three months, and for money note of deft. and one W. E. Pickwick, dated 9th payable and on accounts stated. Plea: the same became due, and whilst plt. was the holder thereof, That after making of the said promissory note, and before Replication:-1. Issue on the said plea. 2. For a further replication, that the said deed was and is in the tenor following (the deed is set out at length and verbatim in the replication, and the following are the parts material for this report): This indenture, made 22nd March 1860, between deft. of the first part, J. H., a trustee for the creditors of the said deft, of the second part, and the several other persons whose names and seals are hereunto set and subscribed, being respectively cre ditors of the said deft., of the third part. Whereas the said deft. is justly indebted to the said several persons, parties hereto of the third part, in the several sums set opposite to their respective names in the schedule hereunder written, which he is unable to pay in full, and has therefore proposed and agreed to assign all his estate and effects unto the said trustee for the benefit of his creditors as hereinafter mentioned. It was thereby witnessed that deft, thereby assigned unto the said trustee all his real and personal estate and effects whatsoever upon trust to sell, and out of the proceeds thereof to pay rateably and without priority to the creditors of the said deft. their several and respective debts, and the residue, if any, of the said proceeds to the said deft. And in consider Rule absolute to vary the order by setting aside the ation of the premises and of the said assignment the said judgment without costs. Attorneys for the plt., Nethersole and Speechley. several persons, parties thereto of the third part, and also the creditors by or on whose behalf the said deed was or should be signed, did thereby release and for ever discharge the said deft. of and from all and all manner of debt and debts, sum and sums of money, covenant and covenants, bills, bonds, notes, accounts, reckonings, judgments, executions, actions, suits, claims, and demands whatsoever which they, any or either of them, then had or thereafter might have against the said deft., his heirs, &c., for or in respect of any debt, transaction, matter, or thing up to the day of the date thereof. And the said creditors parties thereto, each for himself and not one for the other, thereby covenanted with deft., his executors, &c., to indemnify him from and against the several bills and notes which had been accepted, made, or indorsed, or delivered to them res WIGENS v. PICKWICK. Ex.] pectively by deft. for or in respect of the debts or sums set opposite their names respectively or any of them. Averments that plt.'s name and seal was set and subscribed to the said indenture; that the sum set opposite to plt.'s name in the said schedule was 1337. 6s. 8d.; that plt. at the time of making the said indenture was a creditor of deft. for that sum. And further, that the money payable by the said promissory note, and due on the said accounts stated, and the debt and claim in the declaration mentioned, were not, nor were the same or any part thereof, intended, understood, or meant by plt. or deft. to be included in the said sum or debt of 1331. 6s. 8d., or in the said release. And further, that no payment was at any time made to plt. of or on account of the said claim in the declaration out of any moneys received by virtue of the said indenture or otherwise. Issue taken and joined on the said replication. Demurrer and joinder in demurrer also to the same. Deft's. points:-1. That it is not competent to plt. to explain, vary, or control the absolute nature of the release contained in the deed by parol evidence in the manner attempted in the replication. 2. That the effect and operation of the release contained in the deed can only be ascertained from the four corners of the deed itself. 3. That the release being free from ambiguity the recital contained in the deed cannot control the same. 4. That the release is not confined to the debts and sums of money set opposite to the creditors' names in the schedule, but, for the considerations mentioned in the deed, extends to all debts, sums of money, and promissory notes which such creditors (the releasing parties) had against deft. at the date of the deed, and therefore to the promissory note and causes of action in the declaration. Plt.'s points:-1. That the matters set forth in the replication do not infringe the rule against the admissibility of parol evidence to contradict, control, or vary the contents of a deed. 2. That the deed does not in terms release the debt claimed in the action, and that plt. is at liberty to show that it did not, and to what debts the release applied. 3. That the release is only of the sums and debts set opposite to the creditors' names in the schedule. A. Charles, for deft., in support of the demurrer to the replication. The deed contained a general release from all debts due from deft. to plt., and expressly included all bills on which deft. might become liable. It was pleaded as a legal plea, and if within the meaning of the deed the release be shown to be general, deft. was entitled to judgment. It will probably be contended contra that the operation of the release was controlled by the recital in the deed, and that the release applied only to the sum specified in the schedule. But that was not so. The object of the deed was to relieve the debtor from all his debts. The trustee was to distribute the estate rateably. It was analogous to a deed of composition or arrangement under the B. A. 1861, and the same principles were to be applied to it. (He was here stopped by the Court, who called on) Pinder, for plt., to support the demurrer.-On the plainest principles of law with reference to the construction of deeds, the replication was good without having recourse to the principles of equity referred to by the other side. This was not a composition or arrangement deed under the B. A. 1861, but an assignment of deft.'s estate upon trust to sell and pay rateably to the creditors the debts named in the schedule, and the surplus to the assignor. The note was not due at the date of the deed. The recital in effect was, that deft. was indebted to plt. in 1337. 6s. 8d., and there was an averment that the promissory note was not intended to be included therein, and also, [Ex. which was important, that no payment on account of the claim in the declaration had been made by the trustee out of moneys received under the deed. The release, though couched in general terms, was governed by the particular recital, and confined to the specific debts, and it was the same as a distinct recital that plt. was indebted in 133/. 68. 8d. only. For that proposition Payler v. Homersham, 4 M. & S. 423, which was on all fours with and undistinguishable from; the present case, was a distinct and leading authority. It might be said here, as was said by Lord Ellenborough in that case, that the averment, that the money secured by the joint and several note was not meant to be included in the release, put an end to the question. The note being joint and several, was an important element. Suppose deft. to have been a surety for W. E. Pickwick, and upon execution of the deed he had expressly stipulated that it should not extend to the joint and several note, and that therefore the specific sum was put in? [BRAMWELL, B.-You put the case negatively, but suppose the parties ignorant of the existence of the note, then the allegation in the replication would be true, but surely the debtor would be discharged. MARTIN, B.-Payler v. Homersham is distinguishable. There it was not a debt at all. It was a liability on an indemnity bond given as a banker's guarantee, and the scope of the deed pleaded in that case had no reference to a liability of that kind at all. BRAMWELL, B.-You are attempting to explain the deed by parol.] Lord Ellenborough in Payler v. Homersham says: "The release being of an aggregate sum which is compounded of several debts, the plts. may aver of what it is or not compounded." It was like a question of "parcel or no parcel," and plt. might show an intention to include specific debts, and to exclude the promissory note. Had it been included the debt would have been 2331. [MARTIN, B.-There may have been a dispute between the parties on this very matter; the deft. denying his liability on the note, or disputing its validity, and the plt. insisting to the contrary, and ultimately the plt. may have yielded the point and executed the deed. All that is consistent with the replication.] For that very reason the parties, agreed to confine the operation of the release by the recital to the specified debt. In Lyall v. Edwards, 6 H. & N. 137; 30 L. J. 193, Ex., which was a stronger case than the present, a general release was held to extend only to claims known to the parties and not to a claim for a wrongful pledging of documents unknown at the time to the plt. But here it was admitted that neither party intended the note to be included. [BRAMWELL, B.-People continually take it that the contrary of what is denied must have been intended, forgetting that there is another and an intervening state of things, namely, that the matter was never contemplated at all.] Simons v. Johnson and another, 3 B. & Ad. 175, approving the decision in Payler v. Homersham and Harrhy v. Wall, 1 B. & Ald. 103, were authorities to the same effect; and the last-named case showed that had plt. here executed the deed in blank as to the amount of his debt, the note, even though intended to have been excluded, would still have been released. Daniel v. Saunders, 2 Chit. Rep. 564. But again, the note was joint and several, and there being no reservation in the deed of rights against co-debtors was an argument against the release extending to such debts: Simons v. Johnson (ubi sup.) [BRAMWELL, B.-Suppose, instead of 133, it turned out that 2001. was due to the plt., would he not be entitled to a dividend on the 2007.?] It was submitted he would not. The creditors were cestuis que trust of the trustee to the amount named in the deed (Lancaster v. Elce, 7 L. T. Rep. N. S. 123: 31 L. J. 789, Ch.), and the latter would not be justified in paying plt. any part of this note, or any more than the sum specified and admitted by the deed to be due; but if the release was to operate on the whole amount of the debt, then, on the other hand, a composition on the same amount would be payable, the obligation and benefit being mutual and correlative. The schedule, too, would be nugatory and useless if the effect of the deed were the same whether the amount of debt was inserted or not. The replication was good, unless the governing authorities on the construction of deeds were overruled. He cited also [Ex. CH. EXCHEQUER CHAMBER. Reported by E. LUMLEY, Esq., Barrister-at-Law. ERROR FROM THE EXCHEQUER. Feb. 8 and May 14. FLETCHER V. RYLANDS AND ANOTHER. Nuisance-Injury to mines by water from a reservoirIntervening underground communication-Right of action-Knowledge-Negligence in fact unnecessary. Fazakerly v. McKnight, 6 El. & Bl. 795; 26 L. J. 30, Defts. made upon their own land a reservoir. Beneath Q. B.; Com. Dig. "Release," E. 5, "Construction." A. Charles, contra, was not called on to reply. MARTIN, B.-This is an argumentative traverse. It strikes me that according to proper pleading the plt. should have traversed the release in his replication. The replication as it stands is argumentative. The true meaning of the deed is, that the parties shall insert in the schedule everything that is due from the debtor. The averment in the replication that the money payable by the promissory note and the debt or claim in the declaration were not, nor were the same or any part thereof, intended by plt. or deft. to be included in the said debt of 1331. 6s. 8d. or in the said release, is setting up parol evidence to vary the deed, and in my judgment that evidence would have been inadmissible. If you use an argumentative traverse, it seems to me that you should negative every possible case that can be suggested. As far as my judgment goes, the decisions in the numerous cases cited by Mr. Pinder were perfectly right, but I do not think that they are in point at all. They are all of them entirely distinguishable from the present case, which is that of a inan's creditors releasing him severally from his debts. The clear object of the deed here was to release the deft. from all his pecuniary liabilities, and it is manifest that the deed was intended to include all his creditors. On this demurrer I think that the judgment of the court must be for the deft., and that we must hold the replication to be bad. BRAMWELL and PIGOTT, BB. concurred. POLLOCK, C. B. was absent. Judgment for deft. The COURT, however, suggested that plt. might amend his replication, and gave him time until Monday the 7th May to elect whether he would do so or not, on which day Pinder stated to the court that he had elected to amend by striking out the replication and taking issue on the plea of release, which MARTIN, B. said was decidedly the proper course for plt. to adopt. the site of the reservoir were certain old shafts running vertically downwards into old and long disused coalworkings under defts.' land, which communicated with certain workings under the land of one A. The workings of the plt.'s colliery also communicated with the workings under A.'s land. There existed in consequence a communication between the old shafts and plt.'s colliery, but the fact of its existence was not known to the defts. or the persons employed by them to construct the reservoir, nor did they know that the shafts led down to, or even that there were any old coal workings beneath. The reservoir burst down. wards into the shafts, and plt.'s mine was flooded: Held (reversing the judgment of the Court of Ex.), that knowledge of the communication was not necessary to make the defts. liable in an action for the damage occasioned; for the law casts on any landowner who keeps or causes to exist within his own land anything of such a nature that, if it escapes on to his neighbour's land, it will cause damage thereto, an absolute duty to prevent such escape. This was an action for injury to the plt.'s mines arising from the escape of water from a reservoir of the defts. The Court of Ex. (Pollock, C. B., Martin and Bramwell, BB.) upon a special case had decided in favour of the defts. (dissentiente, Bramwell, B.). The plt. now brought error upon their judgment. The facts of the case (which are fully set out in 13 L. T. Rep. N. S. 121) were briefly these:-The plts. were tenants of Lord Wilton. Defts., who were proprietors of a mill, had made upon land of Lord Wilton's, in pursuance of an arrangement made with him for that purpose, a reservoir, employing competent persons to construct the same. It turned out that beneath the site of the reservoir were certain old shafts running down into old coal workings long disused, situate below the said site, which communicated with other old workings situate under the land of one Whitehead. The plt.'s colliery, called the Red House Colliery, adjoined commenced working the Red House Colliery, made Whitehead's land, and the plt. soon after he had arrangements with Whitehead to get, by means of the Red House pit, the coal lying under Whitehead's land, and in pursuance of such arrangements had worked through from the Red House Colliery into the coal lying under Whitehead's land, and so Attorney for plt., Elworthy, 14, Southampton- into the old workings before mentioned situated buildings, Chancery-lane. under Whitehead's land. The consequence was that the workings of the plt.'s colliery were made to comAttorneys for deft., Robinson and Preston, 35, Lin- municate with the old workings under the reservoir. coln's-inn-fields. These underground communications were effected several years before the defts. commenced making their reservoir, but the fact of their existence was not known to the defts. or any agent of theirs, or any person employed by them, until the reservoir burst, as is after mentioned. In the course of constructing the reservoir the shafts were perceived, but it was not known or suspected that they had been made for the purpose of getting the coal beneath the site of the reservoir. The case stated that there was no personal negligence or default whatever on the part of defts. themselves in relation |