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the defendant says that at the time of the alleged trespasses the said races were being holden on the said lands, and the defendant being a subject of the realm entered upon the said parts of the said lands for the purpose of witnessing the said races, which are the alleged trespasses complained of.

Morant v. Chamberlin, 6 H. & N. 541;
Fisher v. Prowse, 31 L. J. Q. B. 212;
Mayor of Northampton v. Ward, 2 Str. 1238;
Prince v. Lewis, 5 B. & C. 371.

I admit that the case of Fitch v. Rawlings is in point to show that a customary right in all the Queen's subBut the Court of Exchequer

Chamber expressly avoided assenting to that decision in the case of

The 8th plea was similar in terms, but stated thejects cannot be set up. custom as applicable to "all the subjects of the realm (with the exceptions of persons who in consequence of having been guilty of misconduct in connection with horse-racing, have been warned not to enter on the said lands by the owners as tenants thereof for the time being.)"

The 9th and 10th pleas were similar to the 7th, but setting up a custom for twenty and forty years respectively, in place of an immemorial custom.

The 11th and 12th were similar to the 8th, but set up a custom for twenty and forty years respectively, in place of an immemorial custom.

To all these pleas the plaintiff demurred.

Tyson v. Smith, 9 Ad. & E. 406.

And there are several cases in the books in which customary rights not restricted to any section of the Queen's subjects, or so wide that they can scarcely be said to be so restricted, have been supported. He referred to

Blundell v. Catterall, 5 B. & Ald. 306; and
Rogers v. Brenton, 10 Q. B. 26.

In the course of the argument,

Dyce v. Lady James Hay, 1 Macq. 311; and Mounsey v. Ismey, 32 L. J. Ex. 94, were also cited.

COCKBURN, C.J.-I am disposed to think that if once you could establish a customary right to hold races on these lands, upon the ground of some grant or dedication, that then, as incidental to that, there might be a dedication of a right to use a way to go and witness them. But the first proposition has to

Mellish, Q.C. (Hannen with him), for the plaintiffs. These pleas are absolutely novel, and set up rights hitherto unheard of. As to the fourth plea, there cannot in law be such a highway as is there set up, for a highway cannot be limited as to the times of enjoyment, although it may be so as to the purposes for which it is to be used. Regina v. Inhabitants of Northampton, 2 M. & S. be established before the other arises, and the autho262,

In

which may be cited as opposed to this proposition, there was a highway at all times, though its course was changed at certain seasons.

The other pleas are bad, for not stating in whom the right to hold the races is; and besides this, the customs there set up being customs for "all the liege subjects of the realm," are clearly bad on the authority of

Fitch v. Rawlings, 2 H. Blackst. 393.

Quain (Hawkins, Q.C., with him), for the defendant.

There is nothing impossible or illegal in the dedication of a highway such as that which the fourth plea sets up. It is a question of fact only, whether there has been such a dedication. The authorities show that there may be a dedication of a highway limited in almost every way with regard both to the time and extent of its enjoyment, and the purposes for which it is to be enjoyed,

Reynolds v. Edwards, Willes, 282;
Poole v. Huskinson, 11 M. & W. 827;
Cowling v. Higginson, 4 M. & W. 250;
Marquis of Stafford v. Coyning, 7 B. & C. 257;
Edwards v. Bullock, 6 Q. B. 383 & 409;
Surrey Canal Company v. Hall, 1 Scott's N. R.
264;

Dornston v. Payne, 2 Sm. L. C. 124;
Regina v. Hudson, 2 Stra. 909;

rity of Fitch v. Rawlings, which is binding on this Court, is conclusive for the present purpose that there cannot be a customary right in the Queen's subjects generally, but that such a right must be confined to a particular district, because rights which belong to the public generally are part of the Common Law. Our judgment must, therefore, be for the plaintiffs.

WIGHTMAN, J.-I am of the same opinion.

BLACKBURN, J.-I am of the same opinion. As soon as it is established that the public generally have no right to go and sport on these lands, it follows that they have no right to go and witness other people sporting.

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Medical practitioner-Removal from the register for "infamous conduct"-Medical Council— 21 & 22 Vict. c. 90, s. 29.

The General Medical Council are the sole judges whether a medical practitioner has, within s. 29 of the 21 & 22 Vict. c. 90, been "guilty of infamous conduct in any professional respect," and where they have erased

Le Neve v. Vestry of Mile End Old Town, 8 El. & the name of a practitioner from the register, on the Bl. 1054;

ground that he has been guilty of such conduct, this

Court will not inquire into the propriety of their of the publication of this book, which may or may not decision.

M. Chambers, Q.C. (Barnard with him), moved for a rule calling on the General Council of Medical Education and Registration to show cause why a mandamus should not issue commanding them to restore the name of the applicant to the register.

Mr. Lamert, the applicant, is a duly qualified medical practitioner, and was in due course registered under the 21 & 22 Vict. c. 90. The Medical Council, however, a short time since directed the registrar to erase his name from the register, on the ground that he had been guilty of infamous conduct in a professional respect, in connection with the publication by him of a work on venereal disorders. Before doing so, the Council communicated the nature of the charges against him, and received his explanations; but they refused to comply with his request to hear him by counsel. These proceedings were taken by the Medical Council under section 29 of the 21 & 22 Vict. c. 90, which provides that "if any medical practitioner shall be convicted in England or Ireland of any felony or misdemeanor, or in Scotland of any crime or offence, or shall after due inquiry be judged by the general council to have been guilty of infamous conduct in any professional respect, the General Council may, if they see fit, direct the Registrar to erase the name of such medical practitioner from the Register."

The learned counsel now contended, upon the facts disclosed by certain affidavits on which he moved, that the applicant had not been guilty of any infamous conduct, and that his name had been, therefore, improperly removed from the register.

[BLACKBURN, J.-Have we any power to inquire into the propriety of the council's decision, under this part of the section, any more than we should have to inquire into the propriety of a conviction under the earlier part of the section?]

The council have here stated the grounds on which they acted, viz., the publication of this work, and it is clear, that such publication was not "infamous conduct."

[BLACKBURN, J.-If the offence were an impossible one, I should go with you. But it would be quite possible to publish a book purporting to be a medical work, which should yet be of an indecent and improper character.]

[WIGHTMAN, J.-Suppose a mandamus were to issue, and the council were to return (in the words of the section), that the applicant had, "after due inquiry, been judged by the general council to have been guilty of infamous, conduct," would not that be a complete answer?]

COCKBURN, C.J.-We are all agreed that section 29 of the Act, makes the Medical Council sole judges of whether a party on the register has been guilty of infamous conduct. The council here have declared that he has been guilty of infamous conduct in respect

have warranted the sentence, but inasmuch as those

whom the Legislature considered the best judges of such a matter, have given their decision, we cannot

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Marine Insurance-Warranty-General
Average.

1. Where perishable goods are insured by a policy of marine insurance in the general form, with the addition of the clause "Warranted free from average, except general," &c., this warranty includes expenses incurred in rescuing the goods from a state of peril which might have resulted in a total loss, but did not.

2. Nor can these expenses be recovered from the underwriter under the usual clause authorising the assured to sue and labour for the preservation of the subject matter of the insurance.

The Great Indian Peninsula Company v. Saunders, 1 B. & S. 40; 2 B. & S. 266, followed.

SPECIAL CASE.-Action on a policy of insurance. The policy in question was in the general form with the addition of the clause, "Warranted free from average, except general, or the ship be stranded, sunk, or burnt." The circumstances out of which the action arose, were the following:-The goods insuredbarrels of bacon-were shipped from a foreign port for Liverpool. At Bermuda, which lay on the direct route, it was found that part of the cargo was in such a state owing to stormy weather and the condition of the ship, that it could not profitably be sent on; in fact, as admitted in the case, that part was constructively lost. The whole cargo was accordingly discharged, and warehoused, and then the part constructively lost was sold, the rest transhipped for Liverpool, the former ship not being in a condition to continue the voyage. The transhipped part of the cargo arrived safely at its destination. The question now was, could the insured recover the expenses of the discharging and warehousing the first part of the cargo, and of the transhipment of, and extra freight for, the second part of the cargo, from the underwriters on the above policy.

There were admissions that the expenses in question were proper and ordinary in similar circumstances, and that it was the practice of underwriters to repay the insured such expenses under the name of particular charges. Also admitted that these expenses were not general average charges.

Quain, for the plaintiff. The four items of expenses

were recoverable under the ordinary sueing and labour-case as this; but the origin of that clause was this; it ing clause of the policy; for I admit, that, according to Ralli v. Jansen, 6 El. & Bl. 422, Cam. Scacc., we could not recover, as for a partial loss, under such a policy as this.

was intended to provide that in case of a total constructive loss, the endeavours of the assured, though fruitless to recover his cargo, should be unprejudicial to his claim against the underwriter, who should

The other side, no doubt, will rely on the case of reimburse the fair expenses incurred, the

Great Indian Peninsula Company v. Saunders,

1 B. & S. 41; s. c. 2 B. & S. 266; but that case is distinguishable; here the bacon sold was a perishable article, there the goods were iron rails, not perishable.

[WILLIAMS, J.-But what would you have said, had your cargo been a mixed cargo, partly iron, partly bacon?]

[BYLES, J.-Another distinction between the case cited and this, may be, that there the goods were sent back to the original shipper and original place whence they were sent; here they could not be.]

2 Emerigon, p. 236, s. 7, c. 17, § 3;
Idem, p. 236, s. 7, c. 12, § 46.

These items of expense are clearly particular average, and, therefore, within the warranty,

Great Indian Peninsula Company v. Saunders, 1 B. & S. 50, per Blackburn, J.

As to the custom, it is a mere practice, wanting all the elements of a custom.

Quain, in reply.

Cur. adv. vult.

ERLE, C.J.-The Court are of opinion, that there is no real distinction between this case and the case of

The Great Indian Peninsula Company v. Saunders. The expenses incurred in this case are such as are ordinarily incurred in similar circumstances, and this

is admitted.

C. P.

Judgment for the defendants.

I submit, that if there was a constructive total loss of the damaged part of the cargo, on the voyage to Bermuda, and a total loss of the rest had happened on the voyage thence to Liverpool, there would have been a constructive total loss of the whole, and these expenses would have been recoverable. And, I contend, that here, as it was for the benefit of all concerned that the master incurred these expenses, without which all the cargo might have been eventually totally lost, we can recover, under the sueing and labouring clause, if that clause means anything at all; and the parties must have intended it to mean something, as they expressly retained it in the policy. A decision against me will decide, in effect, that this clause has no opera-at maturity. After A's death, his widow (the plaintiff) tion whatever in the case of such a policy as this,

2 Phillips on Insurance, p. 464, s. 1777.

19, 20 Nov. 1863.

} VANQUELIN v. BOWARD.

Foreign Law-Administration.

A (a Frenchman) was the drawer, and the defendant the acceptor, of a bill of exchange, which was not paid

paid the amount to the indorsee, who handed her the bill, and she thereupon became entitled to sue on it, in

The case shows that it is the practice among under- her own right, by the law of France. writers to repay the insured such expenses.

Livie v. Jansen, 12 East, 646; Shipton v. Thorton, 9 Ad. & E. 314; Rosetto v. Gurne, 11 C. B. 176; were also cited.

Mellish, Q.C. (Cohen, with him). My contention is, that at the time all these expenses were incurred, there was no risk of total loss.

[KEATING, J.-You mean that at the moment of incurring these expenses, the loss must be impending?] Yes; see

2 Phillips on Insurance, p. 462, s. 1774.

I rest upon the case of the Great Indian Peninsula Company v. Saunders, between which and this, no reasonable distinction can be drawn. It has been urged, that these expenses were incurred for the benefit of all, and among them the underwriter; but the truth is, that it is evident that the latter would have been most benefited by a sale of the entire cargo at Bermuda.

It has been stated on the other side, that the object of the sueing and labouring clause was to meet such a

She also became the "universal donee" of her husband's property, and as such was, by the French law, liable personally for all his debts, and entitled to sue in her own right for all sums owing to him, being, in fact, legally, exactly in his position. On her sucing the defendant here, it was

Held, that she need not take out letters of administration.

The plaintiff's husband was drawer and indorser, and the defendant acceptor, of certain bills in France. The defendant did not pay them at maturity. On the death of her husband, the plaintiff became universal donee of his property: the effect of this, according to the law of France, was, that she was entitled to all his property, and responsible for all his debts, and could sue or be sued in her own right. She was sued by the indorsee of the bills in question, and was compelled to pay him. On this she proceeded against the defendant in a French Court, and he was ordered to pay her the amount of the bills forthwith. This was not done, and the plaintiff now brought this action. The question to be decided was, whether she was entitled

to sue here, in her own right, not having taken out French Court; and she might sue on that. There letters of administration to her husband?

The case arose on demurrers to the pleadings, which will sufficiently appear from the judgment of Erle, C.J.

M. Smith, Q.C., appeared for the plaintiff, and
Lush, Q.C., for the defendant.

The following authorities were cited:-
Attorney-General v. Bouwens, 4 M. & W. 171 ;
Ord v. Fenwick, 3 East, 104;
White v. Rose, 4 Jur. 986;

Bank of Australasia v. Nias, 16 Q. B. 717;
Plummer v. Woodburne, 4 B. & C. 625 ;
Smith v. Nicholls, 5 Bing. N. C. 208, 222;
Patrick v. Sheddon, 22 L. J. Q. B. 283;
Simpson v. Fogo, 32 L. J. Ch. 249;

is abundance of evidence in her favour under the first count; and under the second she ought to have taken out administration were it not for the law of domicil, that law of France which enables her to sue in her own right. I am, therefore, of opinion on the demurrer to each count, that the plaintiff is entitled to our judgment.

Now, as to the pleas demurred to-the first plea is clearly bad, for the reasons stated in reference to the declaration.

So, also, is the eleventh, which says, that the debt is only due to the plaintiff as administratrix.

The twelfth plea says, that the judgment against the defendant in the French Court went by default, and would be reversed if he entered an appearance. This is bad; the judgment of a foreign Court is valid here;

Crispin v. Doglioni, 2 N. R. 290; s. c. 32 L. J. though it may be set aside afterwards, it is valid till P. M. & A. 109;

Story's Conflict of Laws, sec. 513 (5th ed.); 1 Williams' Exors, 786 (5th ed.).

ERLE, C.J.-In this case there are some questions raised as to the French law. The deceased was the drawer, and the defendant the acceptor, of some bills of exchange, and W brought an action against the drawer and acceptor, and recovered judgment against both of them. Then Vanquelin died, and his widow (the plaintiff) became the universal donee of his property, and the owner of it in her own right. The first count alleges that she paid W the principal and interest of the bill and his costs, and that he then handed the bill to her :-and then, according to the French law, she had all the rights of the holder of a bill-i. e., she had the same rights that W had before. She then proceeded in the tribunal of Orleans, and it was there adjudicated that she should recover from the defendant the principal, interest, and costs which she had paid W, and the costs of that decision as well.

The second count alleges that, in her own right, she became the holder of the bill at the death of her husband, and stood, by the law of France, exactly in

his position.

The demurrers to these counts allege that she really sues in a representative capacity, and, therefore, cannot do so without taking out letters of administration. She says she sues in her own right according to the law of France, and here this statement must be taken as correct. It is not even necessary to rely on the second count, as it appears from the first, that, after the death of her husband, she actually paid the bill, and thus became the legal holder of it, independently of the position she stood in as universal donee before she paid it.

then.

The thirteenth plea states certain facts, to show that the Court there had no jurisdiction-those facts might have been tried there.

The eighteenth plea alleges that the consideration for the acceptance of the bill was an agreement between the deceased and the defendant that money was to be raised thereon for a joint speculation, and that they were to share the profits after the bills had been paid, and that the deceased had received enough in the transaction to pay the amount of the bills. So much of this plea as applies to the first count, is bad, but it is good to the second count-therefore, on that part of the eighteenth plea which relates to the second count, our judgment must be for the defendant, and on all the other parts of the case for the plaintiff.

WILLIAMS, J.-I am also of opinion that our judg ment in this case must be substantially for the plaintiff. Tyler v. Bell, (2 Myl. & Cr. 39,) and Price v. Dewhurst, (4 Id. 76,) are both of them authorities in

her favour. This is a right which she has acquired after her husband's decease, and which never formed part of his estate.

These observations do not apply to the second count; and as to that I feel some difficulty, but as my Lord

and my brother Keating agree upon it, I do not feel suf-
ficiently strong to differ from them. There is no doubt
that by the law of England, an executor may in some
chant v. Driver (1 Wm. Saund. 306).
cases both sue and be liable in his own right. Mer-

KEATING, J.-I agree with my Lord on both counts. Here we are bound by the laws of France, and by those laws the plaintiff was entitled to sue in her own right; therefore our judgment must be for the plaintiff, on the demurrers to the declaration.

Now, with regard to the second count, there are So also as to the pleas, at first I doubted as to the many cases here in which persons are entitled to sue thirteenth, but I am convinced now. A foreign judgeither in their own right, or in their representativement may be impeached by showing a want of jurisdiction capacity. in the Court; but we cannot here try facts which have

There is also the judgment in her favour in the come before that Court, else we might decide accord

ing to our own laws, questions which ought to be tried franchise here was gained, and that the revising bar there. rister was wrong.

The plaintiff is therefore entitled to our judgment on all the pleadings demurred to, except to so much of the eighteenth plea as relates to the second count. Judgment accordingly.

C. P. 21 Nov. 1863.

}

HENRETTE, Appellant, v. BOOTH,
Respondent.

Registration Appeal-Right of Voting-Occupier of a House-Model Lodging House. Occupiers of independent dwellings in a model lodging house, are occupiers of houses within the meaning of 2 Will. 4, c. 45, s. 27.

This was an appeal from the decision of the revising barrister of London. The whole question was, whether the claimant was an occupier of a house within the principle of the decision of

Cook v. Humber, 11 C. B. (N. s.) 33.

In the present case, the claimant was tenant of a floor in a model lodging house in Honeysuckle Square, Cripplegate, occupying two rooms opening on a staircase common to all his other fellow-tenants. The house itself was entered by a door at the end of a common passage, and was sometimes left open, sometimes closed. The claimant had a key to his own door on the staircase, and went in and out of the house as he chose. The revising barrister having disallowed his vote, the present appeal was brought.

Knighte, Serjt. (Underdown with him), for appellant. Overend, Q.C. (Fawcett with him), for respondent.

ERLE, C.J.-I am of opinion that the revising barrister is wrong, and that the claimant ought to have his franchise. He was the occupier of a house within the meaning of the cases decided. He occupied the whole of the upper floor, which communicated with the landing on the stairs, and the outer door of his own dwelling was exclusively under his control. The tenement was a separate house within the judgment of the case of Cook v. Humber. The Court, in that case, felt great difficulty in trying to find some definite idea as to what constituted a house, when it might be

that several houses were under one roof; but the Court were necessitated to hold there might be several houses under one roof. A house might be divided by a party-wall; or there might be an intention of creating a separate tenement on each floor. Each floor would then become a separate house. A house might be so constructed as to have the additional defence of

WILLIAMS and KEATING, JJ., concurred.

Decision reversed.

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This was an appeal from a decision of the revising barrister for the southern division of Lancashire. The claimant was a proprietor of a share in the Manchester Corn Exchange. The shares were held by a company, the affairs of which were under the management of a committee of shareholders. The company had been only provisionally registered under the 7 & 8 Vict. c. 110, never having received their certificate of complete registration. By their deed of settlement, the shares were expressed to be personalty. Their property, the Corn Exchange, was freehold, and the land was invested in trustees for the company. The barrister disallowed the vote.

Hannen, for the appellant.

Welsby, for the respondent.

Balmer v. Morris, 9 C. B. (N. S.) 19,

was cited.

ERLE, C.J.-I am of opinion the revising barrister was right in holding that the appellant was not entitled to vote; the shareholder in this company had no interest in land: at the same time the barrister was wrong in thinking that the company was in the nature of a corporation. The land on which the Corn Exchange was built was to be vested in trustees under the deed, and the committee of management were to of this was to give each shareholder a right to call for his share of the profits, but no right to the land. WILLIAMS and KEATING, JJ., concurred.

divide the profits among the shareholders. The effect

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Assistant Overseer.

a door to a passage, or at the bottom of a passage. Notice of Claim-Validity of Appointment of That could not prevent a house such as the claimant's from being a separate house. A separate house depends on its severance, and not on such a thing as handing a key over to the landlord. I think the

An assistant overseer tendered his resignation, and afterwards withdrew it upon his salary being raisul,

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