KEATING, J. (on Nov. 25) delivered the following, judgment of the Court (5).

This was a special case stated between the parties, for the purpose of having it decided whether the plaintiffs can recover from the defendants a sum of 6361. 13s. 7d., alleged by them to have been paid to the defendants in excess of the sums due on certain policies of insurance, and which the defendants agreed, in the event of that allegation being well founded, to repay to the plaintiffs. The policies in question were dated the 13th of October, 1865, and in consideration of an annual premium, the plaintiffs insured from loss or damage by fire the property thereinafter described, "not exceeding the sum specified as applicable to the several articles, viz., 3,500l. on merchandise (jute, petroleum and its products excepted), the assured's own, in trust or on commission for which they are responsible, in or on all or any of the warehouses, vaults, ships, &c," or other places specified, and certain wharves, including Beale's Wharf.

Whilst the policies were in force a fire occurred at Beal's Wharf, in the policies mentioned, and consumed certain chests of tea, which form the subject of the present litigation. Those teas had been deposited in bond by the importer with the wharfinger to whom Beal's Wharf belonged, and who issued warrants for the same, deliverable to the depositor or his assigns by indorsement thereon. The defendants had purchased the teas from the importer, who indorsed to them the warrants in blank. The defendants, before the fire occurred, had resold the teas in specified chests to customers, and had been paid for the same; they held, however, the warrants on behalf of such customers, but merely for the convenience of paying, if required to do so, the charges necessary to clear the teas, such as custom-house dues and rent payable by these vendees.

Under the circumstances, therefore, stated in the present case, we are of opinion that before and at the time of the fire, the property in the teas had passed to the vendees, and that the teas remained at their risk, and not at the risk of the

(5) Willes, J., Keating J., and Brett, J.

defendants, who had no longer any interest in them, or responsibility to the vendees in respect of them in case of fire. But it was contended on behalf of the defendants that, even supposing that to be the case, still the policy being a floating policy covered the goods in question as goods in trust, and that therefore the plaintiffs were liable to pay their full value, and the cases of Waters v. The Monarch Insurance Company (1) and The London and North Western Railway Company v. Glyn (2), were relied on in support of that contention. In those cases goods held by the plaintiffs as bailees were insured by them under policies, the conditions of which provided that goods held in trust would not be covered by the policies unless they were insured as such. The goods accordingly were insured, expressly as goods held in trust by the assured. The offices contended that as the plaintiffs, as bailees, had no insurable interest in the goods beyond their liens respectively, they could only recover to the amount of such liens. But the Court held in each case that the plaintiffs were entitled to recover to the full amount insured, and intimated that the excess beyond the personal interest of the assured would probably be held in trust for the parties really interested, though unaware of the insurance having been effected. If, therefore, the words in the present policies had been similar to those in the policies referred to, we should have thought the cases were authorities in favour of the defendants' view, notwithstanding that they had no interest even amounting to a lien upon the goods in question, but it will be observed the wording in the present policies is essentially different, for whilst in the cases referred to the insurance extended to goods "in trust or on commission" generally, in the present case it is expressly limited to goods "in trust or on commission for which they" (the assured) 66 were responsible." In The London and North Western Railway Company v. Glyn (1), Erle, J., and Hill, J., had thrown out that if insurance companies wished in future to limit their responsibility to the responsibility of the assured, they must employ express words to that effect. It seems to us that the present plaintiffs have done so in these

Compensation-Holborn Valley Improvement Acts-London (City) Improvement Act, 1847-Lands Clauses Consolidation Act, 1845-Time from which Tenant's Interest in Property is to be computed.

The Holborn Valley Improvement Act, 1867, which empowers the Mayor, Sc., of London to acquire certain houses, &c., incorporates the London Improvement Act, 1847, which empowers the Mayor, &c., to take lands, &c., after six months' notice, to treat for the purchase, and in case of dispute to issue their precept to impanel a jury to assess the compensation, and directs persons in posession to give up possession after six months notice; and also incorporates the 121st section of the Lands Clauses Consolidation Act, 1845, which directs that where the tenant's interest does not exceed a tenancy for a year, or from year to year, the compensation shall be assessed by justices. The Mayor, &c., gave a tenant notice that they intended to take his house, that they were willing to treat in respect thereof, and that he must quit in six months :--Held, that for the purpose of determining whether his compensation was to be assessed by a jury jury or by justices, the length of his interest must be computed from the date of the notice, and not from expiration of the six months.

This was an action of mandamus, brought to compel the defendant to issue his precept for the assessment of compensation claimed by the plaintiff, and to take all the necessary steps to have such compensation duly assessed, and for damages for his having made default in the issuing of such precept, and in the taking of such necessary steps; and by the consent of the parties and the order of the Honorable Mr. Justice Montague Smith, dated the 7th day of December, in the year of our Lord 1870, the following Case was stated for the opinion of the Court, without pleadings.

CASE.

The plaintiff was on the 25th day of January in the year of our Lord 1869, tenant of the whole and occupier of a portion of a house and premises, forming No. 14, Black Horse Alley, in the parish of St. Bride, London, for the remainder of a term exceeding one year, under and by virtue of the following agree

ment.—

66

Agreement entered into this 24th day of June, 1867, between Edwin Nixon, of 390, Oxford Street, in the parish of St. Ann's, Westminster, as agent for and on behalf of Mr. William Ward and others, of the one part, and James Walter Tyson, of 15, Black Horse Alley, in the parish of St. Bride and in the city of London, of the other part, as follows: The said Edwin Nixon doth agree to let, and the said James Walter Tyson doth agree to take the house and premises situate and being No. 14, Black Horse Alley, in the said parish of St. Bride, for the term of three years from Midsummer-day, 1867, at the yearly rent of twenty-four pounds, in equal quarterly payments, and with this understanding that the rent should be paid one quarter in advance, and should the said James Walter Tyson fail to pay any quarter's rent within one month after the commencement of the following quarter, then this agreement shall be considered null and void, the same as if no agreement had been entered into, and that the tenancy shall relapse into a weekly tenancy, and that a week's notice shall be sufficient on either side for giving up or retaining possession of the said premises. And it is further agreed that the said

Edwin Nixon doth bind himself to pay all rates and taxes, and to do all repairs he may think requisite to have done to keep the said house and premises in a fit state of tenantable repair. And lastly, it is mutually agreed that after the expiration of this agreement, the tenancy shall continue as a yearly tenancy at the same rent and same mode of payment as before stated, and that six months' notice be sufficient on either side for giving up or regaining possession of the said house and premises.

"Signed, Edwin Nixon.

James Walter Tyson.

'Witness, W. Tyson."

Upon the 25th day of January, in the year of our Lord, 1869, the Corporation of London, as promoters of the Holborn Valley Improvement Additional Works Act, 1867 (1), served on the plaintiff the

(1) The Holborn Valley Improvement (Additional Works) Act, 1867 (30 Vict. c. lv.), by sec. 14 incorporated the London (City) Improvement Act, 1847, except ss. 3, 19, 42-45, 50-55 inclusive, the Lands Clauses Consolidation Act, 1845, except the provisions for purchasing and taking lands otherwise than by agreement, and ss. 127-132 inclusive, and the Lands Clauses Consolidation Acts Amendment Act, 1860, except in so far as repealed, altered, varied, or inconsistent; by sec. 15 it specially incorporated s. 121 of the Lands Clauses Consolidation Act, 1845; by s. 17 it excluded s. 91 of the Lands Clauses Consolidation Act, 1845; by s. 18 it provided that so much of s. 34 of the Improvement Act of 1847, as provides that possession should not be delivered till payment or deposit of purchase or compensation money should be made, as directed by the Lands Clauses Consolidation Act, 1845, should not apply, and no possession should be required till it was deposited or paid in another specified manner; and by s. 29 it incorporated ss. 19-31 inclusive, and s. 33 of the Holborn Valley Improvement Act of 1864.

The London (City) Improvement Act, 1847 (11 & 12 Vict. c. cclxxx.), by sec. 1 incorporated the Lands Clauses Act, 1845, so far as its provisions were not expressly varied or excepted by the Act; and by s. 13, for the purposes of the Act, allowed the Mayor, &c., to take and use

following notice to treat for the said pre

mises.

"The Holborn Valley Improvement (Additional Works) Act, 1867.

"To James Walter Tyson, and to all and every other person and persons having or claiming any estate or interest in the hereditaments and premises hereinafter mentioned or any part thereof.

"Pursuant to and by virtue and in exercise of the powers and provisions contained or incorporated in an Act of Parliament, having the short title of The Holborn Valley Improvement (Additional Works) Act, 1867, and by order and on

lands, and pull down and remove houses, at the expiration of six months after notice in writing of the intention to take or use them given to the owner or occupier; by s. 14 it provided that no house was to be taken or used except those in the schedule; by s. 17 it allowed the Mayor, &c., to treat for the purchase of any lands (which included houses) authorised to be taken; by s. 19 it provided, that so much of the Lands Clauses Act, 1845, as relates to the purchase of lands otherwise than by agreement, was not to be incorporated; by s. 20 it enacted, that on or before the expiration of a month after notice of the intention to take or use land, particulars of the estate, &c., improvements, &c., injury, &c., should be given by those entitled to be recompensed for them, and the sum they were willing to receive; by s. 21 it provided, that when parties refused to accept satisfaction or to treat, &c., the Mayor might issue his precept for empanelling a jury; by s. 32 it provided, that in case of difference between the Mayor, &c., and owners, and occupiers, &c., as to the amount of damages to such property if the claim be not over 50l., the amount was to be determined by two justices; and by s. 34 it provided that all persons in actual possession of lands should at the expiration of six mouths, after notice in writing, give up possession, and if they refused, the Mayor, &c., migh issue their precept to the sheriffs to deliver possession, but that possession should not be delivered till payment or deposit of the purchase or compensation money, as directed by the Lands Clauses Consolidation Act, 1845.

behalf and as agent of the mayor, aldermen, and commons of the city of London in common council assembled, and of the committee to whom the powers contained or incorporated in the said Act are delegated, I do hereby give you and each and every of you notice that it is the intention of the said mayor, aldermen, and commons in common council assembled, and of the said committee, to take and use for the purposes of the said Act the houses, shop, and offices, distinguished by a red colour on the accompanying plan, with the appurtenances thereto belonging, which said premises are described in the plan and book of reference referred to in the said Act, as Nos. 167 and 168, in the parish of Saint Bridget, otherwise Saint Bride, in the city of London. And I further give you notice that the said mayor, aldermen, and commons, and the said committee are willing to treat and agree with you for the purchase of your

estate and interest in the said hereditaments and premises, and for the compensation to be made for the injury or damage (if any) that may be sustained by you on account of the execution of the said Act. And I do hereby further give you, the person or persons in the possession or occupation of the above-mentioned premises or any of them or any part thereof, notice, and require you at the expiraton of six calendar months from and after the giving of this notice, peaceably and quietly to deliver up the possession of the said premises to me, the person duly authorised to take and receive the same, or to such other person or persons as may at any time hereafter be duly authorised for that purpose. And I do hereby require you on or before the expiration of one month next after the giving of this notice, to deliver at my office a statement in writing of the particulars of the estate and interest to which you claim to be entitled in the said hereditaments and premises, and of the amount of the sum of money you are willing to receive in satisfaction or recompense for the value of such estate and interest, and as compensation for any improvements or fixtures, and for any injury or damage that may be sustained by you on account of the execution of the said Act, and of the manner in

which such amount of money has been computed and made up. And in case you have a greater interest in the said hereditaments and premises than as tenant-atwill, and claim compensation in respect of any unexpired term or interest under any lease or grant of the lands or hereditaments so required as aforesaid, I do hereby further require you to produce the lease or grant in respect of which such claim is made, or the best evidence thereof in your

power.

"Dated this twenty-fifth day of
January, 1869.

"Ferd. Brand, Guildhall, London,
Comptroller of the Chamber
of the said City."

"In order to assist you in preparing a statement of your claim a printed form, to be filled up and signed by you, accompanies this notice.'

Upon the 19th day of February, 1869, the plaintiff sent to the Corporation a statement of the amount of his claim, and the nature of his interest in the said premises.

The plaintiff was in occupation of the premises at the date of the commencement of this action, 3rd of November, 1870.

The necessity for a formal demand on the defendant to perform his alleged duty was waived before action.

No objection of form is to be taken on either side.

The question for the opinion of the Court is, whether the plaintiff at the date of the issuing of the writ was entitled to maintain this action.

If the Court shall be of opinion in the affirmative, then judgment with costs of suit is to be given for the plaintiff, that a writ of mandamus do issue to the defendant to issue his precept in respect of the said lands pursuant to the statutes, and to do all acts, and take all necessary steps, for the purpose of having the compensation to be paid to the plaintiff assessed by a jury, such jury also to assess the damages, if any, which would be recoverable in the action of mandamus.

If the Court shall be of opinion in the negative, then judgment of nol. pros. with costs of suit, shall be entered up for the defendant.

W. G. Harrison, for the plaintiff.-The question in dispute is whether the plaintiff is entitled to have compensation assessed by a jury under The London (City) Improvement Act, 1847, section 21, or by justices under the Lands Clauses Consolidation Act, 1845, section 121. And the other side contend that the length of the plaintiff's interest is to be calculated from the expiration of the six months' notice, and that if so calculated it is so short as to bring it within the latter section, which provides that where the interest is not greater than a tenancy for a year, or from year to year, two justices are to adjudicate. First, an equitable interest is sufficient. Sweetman v. The Metropolitan Rail. Co. (2), and looking to the agreement the plaintiff's interest was for more than a year even from the end of the six months' notice. And, secondly, whether this be so or not, the date of the notice determines the tribunal, in which case the plaintiff clearly has sufficient interest to exclude the jurisdiction of the justices. The notice under the Lands Clauses Consolidation Act has always been held to put the parties in the same position as vendor and purchaser, to make a complete contract, and to bind as to value from that time, though as between heir and executor it does not turn the realty into personalty-Hodges on Railways, 179–181; Salisbury v. The Great Northern Railway Company (3); Haynes v. Haynes (4); Stebbing v. The Metropolitan Board of Works (5). And as respects 11 & 12 Vict. c. cclxxx. s. 34, the words of the section shew that it was contemplated that the assessment should be made before the notice to quit elapsed, a notice which, according to Morgan v. The Metropolitan Railway Company (6), is binding; and, consequently, the same rule applies here as under the Lands Clauses Consolidation Act, and the date of the notice is what must be looked to. Thesiger, for the defendant.--For de

(2) 1 Hem. & M. 543.

(3) 17 Q.B. Rep. 840; s. c. 21 Law J. Rep. (N.S.) Q.B. 185.

(4) 30 Law J. Rep. (N.s.) Chanc. 578. (5) 40 Law J. Rep. (N.S.) Q.B. 1.

(6) 37 Law J. Rep. (N.s.) C.P. 265; s. c. 38 Law J. Rep. (N.s.) C.P. 87.

NEW SERIES, 41.—C.P.

ciding the tribunal the expiration of the notice is to be regarded. It is admitted that the date of the notice to treat is the important date under the Lands Clauses Consolidation Act, but the local Act here throws the period forward six months. Under the sections of the former Act after twenty-one days the matter is ripe, and it was decided that the time of notice there binds, because afterwards a contract of vendor and purchaser exists, attaching to the then existing interest, and the machinery for turning out might be put in force and effect it shortly-Sparrow v. The Oxford, Worcester, and Wolverhampton Railway Company (7), whilst here there is a delay of half a year. Suppose a notice given of intention after six months to give notice to treat, then, apart from statutory provision, the interest would not be taken as from the beginning of the notice, and the only effect of the local Act is to make this a contract to take at a future time. The only power here to take is given by section 13 of the local Act which uses the word " intention," and reading this with section 34 as to six months' notice, the effect is that the statute means that six months' notice of intention to take is to be given, that the authorities are bound to take then, that the contract is for an interest existing at this future time, and that that time is to be the test as to the compensation and tribunal. Nothing in Morgan v. The Metropolitan Railway Company (6) militates against this view. As respects the other point, if the Court be against the present one, it is unnecessary to argue it.

WILLES, J.-No satisfactory distinction. has been shewn on behalf of the defendant. The notice here incorporated both a notice to give up possession after six months, and a notice to treat, and since Morgan v. The Metropolitan Railway Co. (6) it must be taken-for it is a decision to that effect-that notice of intention to take possession after six months involves an obligation to give notice to treat, and it may be therefore that though this notice incorporates both, a notice to treat (7) 9 Hare 436; s. c. 21 Law J. Rep. (N.S.) Chanc. 731.

с