MELLOR, J.-I am of the same opinion, and I may add that I have consulted the Chief Justice with regard to the case of Cole v. Kernot, and that he, my brother Lush, and myself, think that it involves the same point as the present case, so that in that case also there will be judgment for the plaintiff. LUSH, J., and HANNEN, J., concurred. *The case of Thompson v. Cohen was argued upon the assumption that the property in question was acquired by the mortgagor after the date of the bill of sale, but there is nothing in the pleadings to shew that there had been any addition to the goods which were on the mortgagor's premises at the date of the transfer. Attorneys-In Thompson v. Cohen, H. G. Field, agent for T. Etty, Liverpool, for plaintiff; Chinery & Aldridge, agents for M. Nordon, Liverpool, for defendant. 1872. COOK (appellant) v. MONTAGU April 24.} (respondent). Nuisance-Sanitary Act, 1866 (29 & 30 Vict. c. 90), s. 21-"Owner" of Premises on which Nuisance exists-House Let for a Term of Years at a Rack Rent. By the Sanitary Act, 1866 (29 & 30 Vict. c. 90), s. 21, the nuisance authority previous to taking proceedings under the Nuisances Removal Act, 1855, are to serve a notice on the person by whose act, default, &c., the nuisance arises or continues, or if such person cannot be found or ascertained, on the owner or occupier of the premises on which the nuisance arises, to abate the same, and for that purpose to execute such works and to do all such things as may be necessary within a time to be specified in the notice. Provided, first, that where the nuisance arises from the want or defective construction of any structural convenience, or where there is no occupier of the premises, notice under this section shall be served on the owner. By the Nuisances Removal Act, 1855 (incorporated with the Act of 1866), s. 2, the word "owner includes any person receiving the rents of the property, in respect of which that word is used, from the occupier of such property on NEW SERIES, 41.—Q.B. his own account, or as trustee or agent for any other person.. or who would receive the same if such property were let to a tenant. Proceedings were taken against the appellant under these Acts for a nuisance caused by the defective construction of a privy. It appeared that the house to which the privy belonged was let by A. to H. for a term of years at a rack rent, and that the appellant received the rent reserved by the lease as agent for the representatives of A. H. occupied the entrance or shop floor only, having underlet the residue of the premises, including the privy, to a yearly tenant at a rack rent: Held, that the appellant was not "owner of the premises within the meaning of the statutes as he did not receive the rent paid by the occupier of the premises in which the nuisance arose. [For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. 149.] 1872. RECEIVER FOR THE METROPOLITAN May 3.] POLICE DISTRICT V. BELL. Appropriation of Penalties-Metropolitan Police District-Receiver of PoliceTwo Justices sitting in Police District2 & 3 Vict. c. 71. s. 47; 3 & 4 Vict. c. 84. 8. 6. By 2 & 3 Vict. c. 71. s. 47, where by any Act penalties or shares of penalties are or shall hereafter be made recoverable in a summary manner before any justices of the peace, and by the Act the same are or shall be limited to the Queen, or some person other than the informer or party aggrieved, in every such case the same, if recovered or adjudged before any of the said (Metropolitan Police) magistrates, shall be recovered for and adjudged to be paid to the receiver for the time being. By 3 & 4 Vict. c. 84. 8. 6, any two justices having jurisdiction within the Metropolitan Police District shall have, while sitting together publicly in the court or room used for holding special or petty sessions in any part of the district within the limits of their commission, except in the divisions to be assigned to the police courts already established, all the powers, privileges and duties which one ma 2 G By 25 & 26 Vict. c. 114. s. 2, power is given to constables, in any highway to search any person suspected of coming from any land where he shall have been unlawfully in search or pursuit of game, or any person aiding or abetting such person, and having in his possession any game unlawfully obtained, or any gun, or nets, or engines used for the killing or taking game; and if such person shall have obtained such game by unlawfully going on any land in search or pursuit of game, or shall have used any such article or thing as aforesaid for unlawfully killing or taking game, or shall have been accessory thereto, he is liable to a penalty not exceeding 51. The appellants were arrested by constables on the highway at about half-past nine on a December evening. One of them had then a net used in catching hares in his hand. The net was wet, and the appellants had been heard to whistle to a dog, half lurcher, which was near them when they were taken, and appeared to belong to one of them: was evidence upon which Held, that there the appellants might be convicted under the Act, as it was not necessary to shew that game had actually been killed by them, and it was enough to shew that the net had been used with the object of killing game. [For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. p. 145.] 1872. ELIOTT AND OTHERS, appellants; May 1. J MAJENDIE, respondent. 139), ss. 2, 4-Duty to Erect Lightning Gunpowder Act, 1860 (23 & 24 Vict. c. Conductors-Penalties. By the Gunpowder Act, 1860 (23 & 24 Vict. c. 139), s. 2, par. 9, Every maker of gunpowder shall cause to be erected good and sufficient lightning conductors in connection with every store magazine where gunpowder is kept by him." By 8. 4, "All gunpowder made in any place where under this Act it is not lawful to make gunpowder, and all gunpowder in any mill, press-house, corning-house, drying-house, or other place exceeding the quantity which for the time being may lawfully be therein, shall be forfeited; and every person making or causing to be made any gunpowder contrary to this Act, or keeping or causing to be kept in any such mill or place any gunpowder contrary to the provisions hereinbefore contained, shall for so doing, in addition to such forfeiture as aforesaid, forfeit for every such offence any sum not exceeding 2s. for every pound of gunpowder so forfeited:Held, that the forfeitures and penalties imposed by s. 4 do not apply to the offence of keeping gunpowder in a store magazine without providing lightning conductors. [For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. p. 147.] 1872. April 26. } CULLEN (appellant), v. TRIMBLE AND OTHERS (respondents). Penalties Contagious Diseases (Animals) Act, 1869 (32 & 33 Vict. c. 70), ss. 57, 104, 108-Absence of Express Words giving Justices Summary Jurisdiction. By the Contagious Diseases (Animals) Act, 1869 (32 & 33 Vict. c. 70), s. 57, "If any person exposes in a market or fair or other public place where horses or animals are commonly exposed for sale... horse or animal affected with a contaany gious or infectious disease, he shall be deemed guilty of an offence against this Act, unless he shews to the satisfaction of the justices before whom he is charged that he did not know of the same being so affected,' &c. By s. 103, "If any person is guilty of any offence against this Act he ... shall be liable to a penalty not exceeding 201." By s. 108, "If any party feels aggrieved by the dismissal of his complaint by justices, or by any determination or adjudication of justices with respect to any penalty under the Act, he may appeal therefrom to any quarter sessions for the county or place in which the cause or appeal has arisen. The appellant shall, within three days after the cause of appeal, give notice to the clerk of the petty sessional division for which the justices act whose decision is appealed from":-Held, that although there were no express words making the penalties recoverable by summary procedure, yet that a jurisdiction was impliedly conferred upon justices to deal summarily with offences under the Act. [For the report of the above case, see 41 Law J. Rep. (N.s.) M.C. 132.] 1872. April 30. May 3. } MARTINEAU AND OTHERS V. Contract of Sale-Vesting of Property Risk of Buyer-Fire Policy-Interest of Buyer in Seller's Insurance. The plaintiffs were sugar refiners in the city of London, and were in the habit of making sales by sample, each sale consisting of one or more fillings or batches of boiled sugar. Upon a sale being effected, a salenote was delivered to the purchaser, which contained the price of the filling per cwt., and the following words-"Prompt one month. Stoved goods at sellers' risk for two months." Each filling comprised a number of specific "titlers," or loaves, of sugar of a varying weight, and it was the custom to pay for the sugar on the Saturday (called "the prompt") after the expiration of one calendar month from the day of sale, but the whole or portion of the sugar often remained in the plaintiffs' warehouse after the time for payment, when it suited the convenience of the customer to delay the delivery, the customer paying on the prompt an approximate sum to the price, which was only finally ascertained and settled when the sugar was weighed on delivery. The defendant, a sugar broker, purchased four fillings or batches of sugar from the plaintiffs, in the manner above stated, and paid an approximate sum to the value. Part of the sugar was removed by the defendant; but after the expiration of two months from the sale a fire occurred on the plaintiffs' premises, destroying the remainder, which had never been weighed. The plaintiffs, without any agreement with the buyers, had effected floating policies upon all stock in their warehouse, making no distinction between goods sold and goods unsold; but the amount which they received from the insurance office was not sufficient to cover the loss which they actually sustained, exclusive of the defendant's goods: Held, first, that the loss by the destruction of the undelivered sugar must fall on the defendant; by COCKBURN, C.J., on the ground that the property had passed to the defendant, by BLACKBURN, J., LUSH, J., and QUAIN, J., on the ground that whether this were the case or not, the sugar, after the lapse of two months, was, by the terms of the contract of sale, at the risk of the defendant. Secondly, that in an action for the price of the sugar, the defendant was not otherwise) of any part of the insurance entitled to the benefit (by way of set-off or money received by the plaintiffs. CASE stated by an arbitrator pursuant to an order of nisi prius. 1. The plaintiffs are sugar refiners, carrying on business under the name of David Martineau & Sons, in Christian Street, St. George's in the East, and the defendant is a merchant and sugar broker carrying on business at St. Mary-at-Hill, in the city of London. 2. Raw sugar, in the process of being refined, is boiled in vacuum pans. The entire quantity boiled at one time and under the charge of one man (called a panman) is termed "a filling." One filling is generally the produce of two vacuum pans, but sometimes of one only, always, however, the entire contents either of one pan or two. 3. The filling, when it is taken from the pans, is poured into inverted conical moulds, where it remains some days to harden and whiten. It is thus formed into sugar-loaves, or according to the trade-namo, "titlers." As soon as the sugar in the moulds is sufficiently hard and white for the purpose (in five or six days), a number and mark are scratched on the bottom of each titler to indicate the particular filling to which it belongs. Some days later (three or four days) when they have further sufficiently hardened, the titlers are taken from the moulds and wrapped in paper, and the same number and mark which have previously been scratched on the bottom of each titler are then written in red chalk upon the paper in which it is wrapped. 4. Every titler of the same batch or filling, and therefore of the same quality, bears upon the bottom of it and upon the paper in which it is wrapped the same number and mark; and the number and mark thus appropriated to the titlers of that one particular filling are not used for those of any other filling until the turn of that particular number and mark comes round again in rotation (usually in about seventeen weeks) by which time all the former fillings which have borne that number and mark have always been sold, and nearly always delivered out of the warehouse. 5. After being wrapped in paper and marked with chalk, as above mentioned, the filling of titlers is taken to the drying stove for the purpose of being thoroughly dried and hardened. When this process is accomplished, titlers become, in the language of the trade, "stoved goods," and are fit for sale. 6. Each filling is then taken from the drying stove to the warehouse, where it is stored away separately from the other fillings, and kept so separate until it is delivered to the customer, as hereinafter mentioned. It does occasionally happen that some titlers of one filling may become intermixed with those of another filling, but such instances are accidental and of rare occurrence. 7. The sales are made by sample, and each sale consists almost invariably of one or more fillings. Two samples of each filling are taken to the counting-house, and upon a sale being effected, one of these samples is delivered to the purchaser and the other is retained by the vendor, and a sale note is also at the same time delivered to the purchaser, which contains the following words printed on the face of it-"Prompt one month. Discount 1 per cent. Stoved goods at seller's risk for two months, other goods for one month." 8. Besides the terms above mentioned, the sale note states the marks and numbers of the filling or fillings sold, the number of titlers in each filling and the price to be paid per cwt. This form of contract was generally adopted by the trade (as between the sugar refiners and their customers) some six or seven years ago. Before that time the sale-note contained only the particulars mentioned in this paragraph, viz., the marks and number of the filling, the number of the titlers sold, and the prices; and nothing was stated in it as to the prompt, discount, or period of risk. By the custom of the trade, however, the prompt was then two months instead of one, and within the two months the goods were usually cleared away, although in some exceptional cases they were left at the refiner's warehouse beyond that period. In those instances the plaintiffs have sometimes threatened to charge their customers warehouse rent, but in point of fact no warehouse rent was ever charged or paid. The plaintiffs have, however, occasionally, after the lapse of the two months, had the goods weighed and sent off to the customer. Both before and after the change in the prompt the plaintiffs were in the habit of keeping floating policies upon all stock in their warehouse, making no distinction between goods sold and goods unsold. 9. The titlers from time to time vary in weight from 30 to 42 lbs. each; but at the time when the contracts hereinafter mentioned were entered into between the plaintiffs and the defendant, the weight of titlers varied in weight from 38 to 42 lbs., those of the same filling being as nearly as possible of uniform weight. Immediately after each sale entries are made by the plaintiffs in their warehouse book, sale book, and day book, of the name of the purchaser, the number of titlers in the filling or fillings sold, and the numbers and marks of such filling or fillings. 12. The goods are paid for on the Saturday after the expiration of one calendar month from the day of sale, which Saturday is called in the trade "the prompt;" but the whole or portions of the goods sold often remain in the plaintiffs' warehouse after the time for payment, when it suits the convenience of the customer to delay the delivery, in which cases the customer pays on the "prompt," either in cash or by bill, an approximate sum to the price. 13. On some few very exceptional occasions, as, for instance, in the month of December, 1870, when a large and sudden demand for sugar has arisen, the plaintiff's have taken specific lots of sugar, which they had sold or contracted to sell to customers, but were lying in their warehouse, to supply the exigencies of the market, giving to their customers in lieu of these other sugar of an equal or better quality. This they have done without consulting the customer, and running the risk of any objection which he might make, but no such objection has, in fact, ever been taken. 14. On the Monday after the expiration of two calendar months from the day of sale, the plaintiffs' practice is to send to the customer an overdue notice, in the form hereinafter mentioned in paragraph 25, stating what goods purchased by him remain in their hands, and that such goods are then lying at his risk, but it frequently happens that these notices are not sent; and whether they are or not, the plaintiffs, as a rule, do not insist upon the immediate removal of the goods when 15. With the exception of the few instances alluded to in the last preceding paragraph, the sugars sold are never weighed until delivery, when they are taken to the scales on their way from the warehouse to the cart or waggon of the customer, or his nominee. 16. It is the custom of the plaintiffs, and of other sugar refiners, to keep on foot floating policies of insurance on the stock from time to time on their premises, all of which policies contain a clause in the following terms, that is to say, "Memo. This policy is now declared to cover stock the property of the assured, and including 'goods sold and paid for but not delivered on the premises within mentioned;'" and the fact of such insurances being kept up by the refiners is generally known to their customers. 17. The merchants and sugar brokers, including the defendant, who are in the habit of dealing with the plaintiffs and other sugar refiners, purchase the sugars to sell to the wholesale grocers; they keep, as a rule, no warehouses or stores of their own, and the sugars purchased by them usually remain at the warehouses of the refiners until resold. It is by no means unusual for the sugar to remain at |
