430 Superior Courts: Queen's Bench; Common Pleas. vessel remained a reasonable time at the Mau- case. This was an action on a policy of insurritius, and, in order properly to decide the ance on the ship Edward Colson, for a voyage question, the jury ought to have taken into from Liverpool to Sydney and Hobart Town, their consideration the particular circum-out and home, with liberty to call and stay for stances of the number of vessels at the Mauri- the purposes of the voyage at all and every tius, the small quantity of freight there, and port and places on either side of the Cape, such the necessity of the ship staying till it could calling and staying not to be deemed a deviaget a cargo. The jury put in a written paper, tion. The ship arrived at Sydney and then stating that they found for the defendant on proceeded to the Mauritius where it arrived in the plea that the partial discharge of the crew March 1334. It stayed through that year and vitiated the policy. That verdict cannot be until the month of April 1335, when finding it sustained, for in fact there is no such plea on impossible to get a cargo it sailed for Europe. the record. The only pleas are that the vessel On the homeward voyage it was lost. The aswas not lost by the perils of the sea, and that sured claimed as for a total loss. This claim was there had been a deviation; on the first plea resisted on the ground that the delay at the it was clear that the plaintiff was entitled to a Mauritius was a deviation, and that the assured verdict. So he was on the second. The Mau- having in the interval between the Spring searitius was a place into which the vessel had, by sons of 1334 and 1835, discharged the crew, the the terms of the policy itself, a right to go, and voyage insured must be considered to have it stayed there no longer than was necessary, and been abandoned. The jury returned a verdict only for a necessary purpose. Under such cir- for the defendant finding that there had been a cumstances the delay was perfectly justifiable deviation, the discharge of the crew in their In Raine v. Bella a ship sailed from Spain, opinion amounting to one. A rule has been being insured from a loading port in Spain to moved for to set aside this verdict, but the London, and in the course of the voyage it put Court does not see any reason to disturb the into Gibraltar for provisions, which could not verdict, as the evidence appears to be satisfacbe obtained before, on account of a scarcity at tory. The Court further desires to say, that the ports of loading. While at Gibraltar, the though the mere discharge of the crew might vessel took in some chests of bullion, but as not be in itself a deviation, it was a strong evithe jury negatived the going into Gibraltar, or dence to shew that the delay was unnecessary, the staying there for any purpose but that of and such delay being unnecessary would altaking in necessary provisions, a verdict was ready be equivalent to a deviation. found for the plaintiff, and the Court sustained Rule refused.-Irving v. Burnand, H. T. the verdict. In Harley v. Bruggin,b the vessel 1840. lay on the coast of Africa for two months, and the Court of Common Pleas there directed a new trial, with the express view of submitting to the jury the question whether it so stayed for the purpose of trading. That is the question which ought to have been left to the jury in the present case. If the vessel stayed at the Mauritius, as it did, for the purpose of trading, This was an action of debt, and the declarathere the stay at a port which was included in tion set out letters patent of 4 Wm. & Mary, the policy, could not be deemed a deviation. incorporating in one company all and singular The partial discharge of the crew might be a persons using the trade of poulterers, or sellfact for the consideration of the jury in deter- ing poultry wares, coneys, butter and eggs mining the question of reasonable delay, but within the city of London, or within seven if the vessel was at the Mauritius for the pur- miles thereof, by the name of the "Master, Warposes contemplated at the time the policy was dens, and Assistants of the Company of Poulentered into, its stay cannot vitiate the policy. terers, London;" by which it was declared, The reasonableness of sending the ship on an that there should be one master, four wardens, intermediate voyage was a question left for and sixteen assistants of the said company, to the jury in Ongier v. Jennings by Lord Eldon, be chosen and elected as thereinafter menand that direction was not afterwards disputed. tioned; and that they should have power of All the cases turn solely on the question whe-making such reasonable laws, acts, orders, orther the ship was employed on purposes different from the voyage. Here the employment was in pursuance of the voyage itself. If the delay is not accounted for, the underwriters are discharged; Palmer v. Fenning; but if it is, and it appears to be a delay in pursuance of the object of the voyage, as it was here, they still continue liable." Lord Denman delivered a 9 East 185. c 1 Comp. 505, n. Cur, adv. vult. judgment in this b Park on Ins. 469. d 9 Bing. 460; 2 Moore & S. 624. Common Pleas. CORPORATION BYE LAW.-CONSTRUCTION. The bye law of a corporation must receive a reasonable construction, although its language, taken literally, might appear inconsistent with that construction. dinances, and constitutions in writing, as to them or the greater part of them, whereof the master and one of the wardens for the time being to be two, should seem fit, good, and convenient, according to their best discretion, touching and concerning the good estate, order, and government of the said company, and of every member thereof; and in what order and manner the said master, wardens and assistants, and all and every person or persons being free of the company within the limits aforesaid, should demean and behave themselves, as well as in all and singular matters, causes and things, touching and concerning Superior Courts: Common Pleas. 431 to the present, the declaration omitted to allege that the defendant was a freeman of the city of London, as well as a freeman of the particular corporation, and on that ground it was held bad on special demurrer. In this case it is truly averred that the defendant was a freeman of the city of London as well as of the corporation, but that does not establish the validity of the bye-law itself: that averment in its terms shews the bye-law to be bad. Barstow, contra -The bye-law must receive a reasonable construction, and it will not be intended that the company will elect persons to the livery who are not qualified; but the presumption will be the other way. The Master &c., of the Vintners' Comp. v. Passey, City of London v. Vanaker; the London Tobacco Pipe Makers' Comp. v. Woodroffe. In the last of these cases the word "persons" was held to be confined to eligible persons. That case is not to be distinguished from the present. If the defendant was ineligible to the livery in consequence of not being free of the city, that fact should have been pleaded by him. the said company or anything thereunto ap- tions requisite for taking the office. In The pertaining, with power of imposing fines Master aud Wardens of the Innholder's Comto be recovered by action of debt, &c.|pany v. Gladhill,a which was an action similar The declaration then stated the acceptance of the letters patent by the company and that the said company was afterwards made a Livery Company of the City of London; and went on to aver, that in the year 1692, a certain reasonable ordinance in writing was made at a convocation of the master and wardens, by which it was ordered and established that the master, wardens, and assistants of the said company for the time being, or the greater part of them, from time to time, and at all times thereafter, when and so often as they should think it convenient or find it needful, should and might call, nominate, choose, and admit into the livery or clothing of the said company, such and so many persons being freemen of the said company, as they should think meet, honest, and of ability, to be called and admitted into the said livery; and that every person who should be so called, elected, and chosen into the said livery, and should refuse or deny to be of the same livery, not having any such lawful, just or reasonable cause or excuse for such his refusal and denial, as by the master, &c. should be judged sufficient, should Mellor, in reply.-There the office in quesfor every time of such his refusal or denial, for- tion was that of warden of the company, and feit and pay to the master, &c. for the time be- consequently a corporate office, the qualificaing for the use of the said company, the sum of tions for which were entirely matter for the re107. The declaration further set out the con- gulation of the company itself: here, a new firmation of this ordinance, and notice to the qualification is made necessary by a power over defendant of the premises; and that the de- which the company have no control. This is fendant was on the 6th March, 1828, duly ad- not merely a corporate office; by being a mitted to the freedom of the Poulterer's Com-liveryman, rights are acquired beyond the scope pany, and was afterwards duly admitted to the freedom of the City of London, and became a freemen of the City of London as a poulterer; and that the defendant so being such freeman, afterwards on the 9th March, 1838, the greater part of the master, wardens, &c., at a court of the company, held at the Guildhall of the city of London, thinking the defendant a meet, honest person, &c., did nominate and call him into the livery and clothing of the said company, and thereof gave notice to the defendant, and required him to attend at a court, to be held by them on 28th June, 1838, at which court they were ready to admit him; but that though he had no good cause or excuse, he refused to attend or be admitted to the livery, whereby an action had accrued to the said master, wardens, &c., to demand and have of and from the defendant the sum of 107. Breach, non-payment. General demurrer and joinder. of the corporation. Cur, adv. vult. Tindal, C. J.-The question turns on the validity of the bye-law set out in the declaration, by which it was ordained that the master, &c., might nominate to the livery such and so many persons, being freemen of the company, as they should think meet, honest, and of ability, and it is objected that the bye-law empewers the company to call in and nominate to the livery other than freemen of the city. It was argued that it is necessary that a person so nominated should be a freeman of the city, as well as of the company; and as the incorporation of this particular company extends to the distance of seven miles beyond the city of London, there may be many who are freemen of this company without being freemen of the city. If the bye-law is to be construed according to the letter, it would certainly, according to the terms of it, extend to Mellor supported the demurrer, and con- persons not being free of the city; and accordtended that the bye-law set out in the declara-ing to the judgment of Foster, J., in The Master tion was void, as it purported to extend to all freemen of the company, whereas none can be liverymen who are not also freemen of the city of London. It is admitted that there are many free of the company who are not free of the city. Now a law that imposes on its members the necessity of taking on themselves an office to which they are ineligible is void, much more when the body making that law has not the power of giving such members the qualifica and Wardens of the Innholders' Company v. Gladhill, might be fairly contended to be void, as including persons not properly eligible to the livery. We think, however, that the byelaw must receive a reasonable construction, and that the persons mentioned in it must be taken to mean persons properly qualified in a Sayer's Rep. 274. b 1 Burr. 240. 432 Law Bills in Parliament.-Easter Term Examination.-Editor's Letter Box. other respects, according to the case of The London Tobacco-Pipe Maker's Company v. Woodroffe. We cannot distinguish that case from the present, and our judgment must therefore be for the plaintiff. Judgment accordingly.-The Masters, War. dens, &c. of the Poulterers' Company v. Phillips, H. T. 1840. C. P. LIST OF LAW BILLS IN PARLIA- Royal Assent. Brighton Small Debts Court. To consolidate and amend the Law of Sewers. To give Summary Protection to persons em- PARLIAMENTARY PRIVILEGE. The following clause has been added to the publication of Parliamentary Papers: Bill for giving Summary Protection to the That in every such civil proceeding, within forty-eight hours after the delivery of such certificate and affidavit, the defendant shall cause a notice in writing to be delivered at the 23 March. residence, office, or lodgings of the plaintiff or of the attorney of the plaintiff, as the case may be, indorsed on the writ, in which notice it shall be stated that such proceeding is stayed pursuant to this act. House of Lords. Copyholds Enfranchisement. Ld. Brougham. [In Select Committee.] Frivolous Suits Act amendment, touching costs. [For second reading.] Lord Denman. Rated Inhabitants Evidence. [In Committee.] Vagrants' Removal. [For third reading.] Bolton Small Debts Court. [In Committee.] For facilitating the Administration of Justice. [For second reading.] Lord Chancellor. For the commutation of Manorial Rights. [For second reading.] Lord Redesdale. For defining the powers of the Metropolitan Police Justices. EASTER TERM EXAMINATION. As the term ends on Wednesday the 13th the 5th. The number of applications included in the printed list for next term is 162; but deducting the names of those already examined and passed, and several who have omitted to give notice of examination, we understand the number of candidates at present is 133. Probably a few more may be added by leave of the Court or a Judge. There seems, therefore, to be no falling off in this branch of the profession. THE EDITOR'S LETTER BOX. The letters on Powers coupled with Interest, and on the proposed Articled Clerks' Club shall be attended to. We think the letter of W. F. is not so judicious as we could have wished it to be, and it would be premature to publish it till the House of Lords has come to a decision. "A Constant Reader" should make some search himself into the question he states, before calling on other correspondents. Has not the point on the 33d section of the Wills Act been sufficiently discussed? We will, however, consider the further letter which we have received. The same remark applies to the subject of Powers of Appointment in Purchase Deeds. The question on the power of Coroners to compel Attorneys to serve as Jurymen on Inquests shall be noticed. Letters for the editor of this work should be addressed to the office, No. 67, Chancery Lane. The Legal Observer. MONTHLY RECORD FOR MARCH, 1840. -" Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. REMOVAL OF THE COURTS FROM together from their present inconvenient situa WESTMINSTER. WE lately noticed an able pamphlet in favour of the removal of the Courts from Westminster Hall to the neighbourhood of the Inns of Court, (see p. 341, ante). The subject appears to excite considerable attention at the present time, and we have heard from various sources that some active measures are in progress for bringing the question before Parliament. tion. I would send them to Lincoln's Inn Fields, into the immediate neighbourhood of the lawyers. Let them be altogether. This would be more convenient to the public, and more convenient in every respect to the lawyers themselves. I have scarcely ever visited any courts of justice arranged so inconveniently, or with so little accommodation, as our present cours; and although a great deal of money think that any loss would be sustained, but has been expended in fitting them up, I do not that, on the contrary, great public convenience would be obtained, by getting rid of them alHaving in our former article stated the together. Judges and lawyers are very proper arguments in favour of the removal, we now persons to carry into effect the acts of the proceed to lay before our readers the objec-legislature, but they have no necessary contions thereto, and the answers which the Author of the pamphlet has given :— "The objections which have been made to the removal of the Courts of Law from Westminster, hitherto put forward, were alluded to in the debate in the House of Commons on the 9th of February, 1836, on Mr. Hume's motion, "That the Building Committee of the new Houses of Parliament might be instructed to reconsider the fitness of the intended site." On that occasion, the separation of the Houses of Parliament from the Courts of Law was incidentally touched on, and the following passages, referring to the subject, are quoted from the Mirror of Parliament: "9th February, 1836.-Mr. Hume.-'I do not go so far as to say, that the neighbourhood of the law Courts is bad, but I am free to confess, that I would rather be at a distance from them. I know it is held by many, that the situation is convenient for those lawyers who have to attend the house; but looking at the small number of those gentlemen, compared with the other members of the house, I do not think that their convenience ought to weigh much, if there are other circumstances to counterbalance it. I may be accused of wishing to effect a radical change in this respect, because I would remove the courts of law alVOL SIX, No. 582. nexion with the proceedings of this house; they are altogether distinct." ، Sir Frederich Pollock. With regard to those members of the profession to which I have the honour to belong, and who are also members of this house, I apprehend it is a matter of indifference to them, whether the House of Commons be situated in the vicinity of Westminster Hall, St. James's Palace, or Charing Cross. Even supposing the removal of the Houses of Parliament might occasion inconvenience to the members of my profession, I am quite sure that not one of them would be found to let any personal consideration of that sort prevail against what might be considered the general convenience of the members of the Houses of Parliament. I repeat, however, that the site of the Houses of Parliament is a matter of perfect indifference to the gentlemen of the bar. It is undoubtedly true that the Courts of Law sit a certain portion of the year in Westminster Hall; but it is also true that the Courts of Equity sit a much longer time in Lincoln's Inn, as also does the Court which I chiefly attend, at the Guildhal!, in the City of London, or in its immediate neighbourhood. For my own part, I should care little whether, after my hours of business, I went from Guildhall to Westininster, or to Pall Mall. But there is a class of persons 2G 434 Removal of the Courts from Westminster. House of Commons they have no connexion. The force of the second objection, then, is this: that the House of Lords, and the committees of both Houses, can at present be attended by barristers, with more convenience to the Houses, and at less expense to the public, than if the Courts and parliament were separated. But let the extent of this convenience be clearly understood. Parliament generally sits from the beginning of February till the middle of August, about twenty-six weeks, or one hundred and eighty-two days; but out of this time the equity bar is at Westminster only forty-four days, and the common belonging to the legal profession,-I mean the | is no doubt they will all cordially subscribe, solicitors and attorneys, and a portion of the are all we need notice on this head. public connected with the administration of "2. It is in no way necessary to the public justice, to whom I believe the proximity of the service, that the judges should sit in the neighHouses of Parliament to the place where jus-bourhood of parliament. It is but rarely, and tice is administered, is of the greatest impor-on solemn occasions, that they are called upon tance at the time when the House of Lords is to advise the House of Lords; and with the sitting as a Court of Appeal, and when committees of the House of Commons are engaged on business which requires the assistance of gentlemen of the bar. Because if the Houses of Parliament were to be removed from the place were justice is administered, and where the members of the bar congregate together, it would be impossible for solicitors, engaged in parliamentary business, to obtain that assistance and advocacy which they might desire, or the House require, without putting their clients to a very great expense. Either the business would remain for a length of time unsettled, or be done indifferently. I do, therefore, think it would be a matter of great in-law bar, at the most, eighty days; which latter convenience for those who might have business to transact with the House of Lords, or the Committees of either House of Parliament, if there were such an entire removal of those Houses, as I should look upon their removal to St. James's Palace, or the back of the Mews to be. It is not for any personal interest of my own, or that of any member in this House belonging to the same profession, that I have thought it necessary to make these few observations, but for the benefit of those connected with it who are absent, and such portion of the public as would be affected by the proposed - changes.' * "Sir Robert Peel.-'I entirely agree, that if all other things were nearly balanced, historical recollections ought to be considered of some importance. It is also of some importance that the Houses of Parliament should be in the neighbourhood of the Law Courts, were the judges are accustomed to sit, and where those counsel and other gentlemen in the legal profession, by whom the parliamentary and other business is usually transacted, are in the habit of attending; for the near vicinity gives the house the command of the services and assistance of the first men of the profession. This is important, especially after a general election, and I much doubt whether we should retain this advantage if the Courts were removed to any distance from us." "The reasons, then, for the present site are"1. That those members of parliament who are at the bar find it convenient. 2. That the contiguity of the judges and the bar to the Houses of Parliament affords assistance to the Houses and to solicitors, which they would not otherwise receive. "1. As to the first point, Mr. Hume's answer, that the personal convenience of those members of parliament who practise at the bar, and who are very few in number, ought not to govern a public question like the present, and the disclaimer on their behalf by Sir Frederick Pollock, of any desire to have their convenience considered, to which there number, as it includes the first fortnight in February, during which, in general, there is no parliamentary business calling for the services of the bar, may be reduced to sixty-six days. Thus, Parliament only enjoys this supposed convenience for about one-third of the session, and it cannot be said it experiences any want of professional assistance during the remaining two-thirds of the session. "But Sir Frederick Pollock considers it would be impossible for solicitors, in case of a separation of the houses and the Courts, to obtain the assistance of the bar, without putting their clients to a very great expense." His meaning is, that the bar would not attend the Houses of Parliament without higher fees than they receive at present. Counsels' parliamentary fees, as is well known, are regulated on a very handsome scale-they are more than double the ordinary Court fees; and, in addition to these, they receive a special fee of ten guineas for each attendance. Now, let it be observed, (for it seems to be an entire answer to the doubt thrown out by Sir Frederick Pollock), that precisely the same fees are paid whether the Courts are sitting at Westminster or elsewhere, and counsel willingly attend, on these terins, from Guildhall and from Lincoln's Inn, and even refrain from going circuit to hold parliamentary briefs. In truth, the business being very easy, very agreeable, and being considered by the bar very lucrative, there is most serviceable and most successful parmuch inducement for them to accept it. The themselves, chiefly or entirely, to that kind of liamentary advocates are those who devote business; and it is more advantageous to the public, as well as more convenient to the cominittees, to have the attendance of gentlemen of experience in parliamentary practice and precedent; hence the leaders may almost be said to form at the present time a distinct bar, and the casual practitioners are mostly juniors, whose numbers will be found to be quite inconsiderable. The business of the committees being of a continuous nature, unlike the brief and varying subject-matters of the law Courts, |