Imágenes de páginas

the defendant says that at the time of the alleged Morant v. Chamberlin, 6 H. & N. 541; trespasses the said races were being holden on the Fisher y. Prowse, 31 L. J. Q. B. 212; said lands, and the defendant being a subject of the Mayor of Northampton v. Ward, 2 Str. 1238 ; realm entered upon the said parts of the said lands Prince v. Lewis, 5 B. & C. 371. for the purpose of witnessing the said races, which are I admit that the case of Fitch v. Rawlings is in point the alleged trespasses complained of.

to show that a customary right in all the Queen's sub*The 8th plea was similar in terms, but stated the jects cannot be set up. But the Court of Exchequer custom as applicable to “all the subjects of the realm Chamber expressly avoided assenting to that decision (with the exceptions of persons who in consequence of in the case of having been guilty of misconduct in connection with Tyson v. Smith, 9 Ad. & E. 406. horse-racing, have been warned not to enter on the And there are several cases in the books in which said lands by the owners as tenants thereof for the customary rights not restricted to any section of the time being.)"

Queen's subjects, or so wide that they can scarcely be The 9th and 10th pleas were similar to the 7th, but said to be so restricted, have been supported. He setting up a custom for twenty and forty years respec- referred to tively, in place of an immemorial custom.

Blundell v. Catterall, 5 B. & Ald. 306; and The 11th and 12th were similar to the 8th, but set Rogers v. Brenton, 10 Q. B. 26. up a custom for twenty and forty years respectively, In the course of the argument, in place of an immemorial custom.

Dụce v. Lady James Hay, 1 Macq. 311; and To all these pleas the plaintiff demurred.

Mounsey v. Ismey, 32 L. J. Ex. 94, were also

cited. Mellish, Q.C. (Hannen with him), for the plaintiffs.

These pleas are absolutely novel, and set up rights COCKBURN, C.J.-I am disposed to think that if hitherto unheard of. As to the fourth plea, there can

once you could establish a customary right to hold not in law be such a highway as is there set up, for a races on these lands, upon the ground of some grant highway cannot be limited as to the times of enjoyment, or dedication, that then, as incidental to that, there although it may be so as to the purposes for which it might be a dedication of a right to use a way to go is to be used. In

and witness them. But the first proposition has to Regina v. Inhabitants of Northampton, 2 M. & S. be established before the other arises, and the autho262,

rity of Pitch v. Rawlings, which is binding on this which may be cited as opposed to this proposition, Court, is conclusive for the present purpose that there there was a highway at all times, though its course was cannot be a customary right in the Queen's subjects changed at certain seasons.

generally, but that such a right must be confined to a The other pleas are bad, for not stating in whom the particular district, because rights which belong to the right to hold the races is; and besides this, the customs public generally are part of the Common Law. Our there set up being customs for "all the liege subjects judgment must, therefore, be for the plaintiffs. of the realm,” are clearly bad on the authority of Fitch v. Rawlings, 2 H. Blackst. 393.

WIGHTMAN, J.-I am of the same opinion. Quain (Hawkins, Q.C., with him), for the defen- BLACKBURN, J.-I am of the same opinion. As dant.

soon as it is established that the public generally have There is nothing impossible or illegal in the dedica- no right to go and sport on these lands, it follows that tion of a highway such as that which the fourth plea they have no right to go and witness other people sets up. It is a question of fact only, whether there sporting. has been such a dedication. The authorities show that


concurred. there may be a dedication of a highway limited in

Judgment for plaintifs. almost every way with regard both to the time and extent of its enjoyment, and the purposes for which it is to be enjoyed,

Q. B.

Ex parte LAMERT. Reynolds v. Edwards, Willes, 282;

24 Nov. 1863. Poole v. Huskinson, 11 M. & W. 827 ;

Medical practitioner-Removal from the register Cowling v. Higginson, 4 M. & W. 250 ;

for infamous conduct"- Medical CouncilMarquis of Stafford v. Coyning, 7 B. & C. 257 ;

21 & 22 Vict. c. 90, s. 29. Edwards v. Bullock, 6 Q. B. 383 & 409 ; Surrey Canal Company v. Hall, 1 Scott's N. R. The General Medical Council are the sole judges

whether a medical practitioner has, within s. 29 of the Dornston v. Payne, 2 Sm. L. C. 124;

21 & 22 Vict. c. 90, been guilty of infamous conduct Regina v. Hudson, 2 Stra. 909 ;

in any professional respect," and where they have crased 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


264 ;


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

have warranted the sentence, but inasmuch as those M. Chambers, Q.C. (Barnard with him), moved for whom the Legislature considered the best judges of a rule calling on the General Council of Medical Educa- such a matter, have given their decision, we cannot

interfere. tion and Registration to show cause why a mandamus should not issue commanding them to restore the name WIGHTMAN, BLACKBURN, and MELLOR, JJ., conof the applicant to the register.

curred. Mr. Lamert, the applicant, is a duly qualified medical

Rule refused. 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

C.P. his name from the register, on the ground that he had

Booth v. GAIR.

7 Nov. 1863. been guilty of infamous conduct in a professional respect, in connection with the publication by him of Marine Insurance-Warranty-General a work on venereal disorders. Before doing so, the

Average. Council communicated the nature of the charges against him, and received his explanations ; but they refused

1. Where perishable goods are insured by a policy of to comply with his request to hear him by counsel.marine insurance in the general form, with the addition These proceedings were taken by the Medical Council of the clause Warranted free from average, except under section 29 of the 21 & 22 Vict. c. 90, which pro- general," &c., this warranty includes expenses invides that "if any medical practitioner shall be con

curred in rescuing the goods from a state of peril which victed in England or Ireland of any felony or mis- might have resulted in a total loss, but did not. demeanor, or in Scotland of any crime or offence, or

2. Nor can these expenses be recovered from the undershall after due inquiry be judged by the general council writer under the usual clause authorising the assured to to have been guilty of infamous conduct in any pro

sue and labour for the preservation of the subject matter fessional respect, the General Council may, if they see of the insurance.

The Great Indian Peninsula Company v. Saunders, fit, direct the Registrar to erase the name of such medical practitioner from the Register."

1 B. & S. 40; 2 B. & S. 266, followed. The learned counsel now contended, upon the facts SPECIAL CASE.-Action on a policy of insurance. disclosed by certain affidavits on which he moved, that The policy in question was in the general form with the applicant had not been guilty of any infamous the addition of the clause, “Warranted free from conduct, and that his name had been, therefore, average, except general, or the ship be stranded, sunk, improperly removed from the register.

or burnt.” The circumstances out of which the action [BLACKBURN, J.-Have we any power to inquire arose, were the following :— The goods insuredinto the propriety of the council's decision, under this barrels of bacon—were shipped from a foreign port part of the section, any more than we should have to for Liverpool. At Bermuda, which lay on the direct inquire into the propriety of a conviction under the route, it was found that part of the cargo was in such earlier part of the section ?]

a state owing to stormy weather and the condition of The council have here stated the grounds on which the ship, that it could not profitably be sent on; in they acted, viz., the publication of this work, and it fact, as admitted in the case, that part was conis clear, that such publication was not “infamous structively lost. The whole cargo was accordingly conduct."

discharged, and warehoused, and then the part con[BLACKBURN, J.-If the offence were an impossible structively lost was sold, the rest transhipped for one, I should go with you. · But it would be quite Liverpool, the former ship not being in a condition to possible to publish a book purporting to be a medical continue the voyage. The transhipped part of the cargo Fork, which should yet be of an indecent and improper arrived safely at its destination. The question now character. 1

was, could the insured recover the expenses of the (WIGHTMAN, J.--Suppose & mandamus were to discharging and warchousing the first part of the cargo, issue, and the council were to return (in the words and of the transhipment of, and extra freight for, the of the section), that the applicant had, “after due second part of the cargo, from the underwriters on the inquiry, been judged by the general council to have above policy. been guilty of infamous conduct," would not that be There were admissions that the expenses in question a complete answer!)

were proper and ordinary in similar circumstances,

and that it was the practice of underwriters to repay COCKBUEN, C.J.-We are all agreed that section 29 the insured such expenses under the name of particular of the Act, makes the Medical Council sole judges of

charges. Also admitted that these expenses were not whether a party on the register has been guilty of

general average charges. infamous conduct. The council here have declared that he has been guilty of infamous conduct in respect 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 was intended to provide that in case of a total con

Ralli v. Jansen, 6 El. & Bl. 422, Cam. Scacc., structive loss, the endeavours of the assured, though we could not recover, as for a partial loss, under such fruitless to recover his cargo, should be unprejudicial a policy as this.

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

2 Emerigon, p. 236, s. 7, c. 17, $ 3; Great Indian Peninsula Company v. Saunders, Idem, p. 236, s. 7, c. 12, $ 46. 1 B. & S. 41; s. C. 2 B. & S. 266 ;

These items of expense are clearly particular average, but that case is distinguishable; here the bacon sold and, therefore, within the warranty, was a perishable article, there the goods were iron Great Indian Peninsula Company v. Saunderi, rails, not perishable.

1 B. & S. 50, per Blackburn, J. [WILLIAMS, J.-- But what would you have said, had As to the custom, it is a mere practice, wanting all your cargo been a mixed cargo, partly iron, partly the elements of a custom. bacon?] [BYLES, J.-Another distinction between the case

Quain, in reply.

Cur, adr, ruit. cited and this, may be, that there the goods were sent back to the original shipper and original place

ERLE, C.J.—The Court are of opinion, that there is whence they were sent; here they could not be.]

no real distinction between this case and the case of I submit, that if there was a constructive total loss The Great Indian Peninsula Company v. Saunders. of the damaged part of the cargo, on the voyage to The expenses incurred in this case are such as are Bermuda, and a total loss of the rest had happened on ordinarily incurred in similar circumstances, and this the voyage thence to Liverpool, there would have been

is admitted. a constructive total loss of the whole, and these ex

Judgment for the defendants. penses 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

C. P.

} VANQUELIN v. Boward. all the cargo might have been eventually totally lost, 19, 20 Nov. 1863. we can recover, under the sueing and labouring clause, if that clause means anything at all; and the parties

Foreign Law-Administration. must have intended it to mean something, as they

A (a Frenchman) was the drawer, and the defendant expressly retained it in the policy. A decision against the acceptor, of a bill of exchange, which was not paid me will decide, in effect, that this clause has no opera- | at maturity. After A's death, his widow (the plaintif) tion whatever in the case of such a policy as this,

paid the amount to the indorsee, who handed her the 2 Phillips on Insurance, p. 464, s. 1777.

bill, and she thereupon became entitled to sue on it, i4 The case shows that it is the practice among under her own right, the law of France. writers to repay the insured such expenses.

She also became the universal donee" of ke? Livie v. Jansen, 12 East, 646;

husband's property, and as such was, by the Pronck Shipton v. Thorton, 9 Ad. & E. 314;

law, liable personally for all his debts, and entitled to Rosetto v. Gurne , 11 C. B. 176;

sue in her own right for all sums owing to him, being, were also cited.

in fact, legally, exactly in his position. On her sucing

the defendant here, it was Mellish, Q.C. (Cohen, with him). My contention is,

Held, that she need not take out letters of administhat at the time all these expenses were incurred, there

tration. was no risk of total loss.

[KEATING, J.-You mean that at the moment of The plaintiff's husband was drawer and indorser, and incurring these expenses, the loss must be impending?] the defendant acceptor, of certain bills in France. The Yes ; see

defendant did not pay them at maturity. 2 Phillips on Insurance, p. 462, s. 1774.

death of her husband, the plaintiff became universal I rest upon the case of the Great Indian Peninsula donee of his property : the effect of this, according to Company v. Saunders, between which and this, no the law of France, was, that she was entitled to all his reasonable distinction can be drawn. has been property, and responsible for all his debts, and could urged, that these expenses were incurred for the sue or be sued in her own right. She was sued by the benefit of all, and among them the underwriter; but indorsee of the bills in question, and was compelled to the truth is, that it is evident that the latter would pay him. On this she proceeded against the dehave been most benefited by a sale of the entire cargo fendant in a French Court, and he was ordered to pay at Bermuda.

her the amount of the bills forthwith. This was not It has been stated on the other side, that the object done, and the plaintiff now brought this action. The of the sucing and labouring clause was to meet such a question to be decided was, whether she was entitled

On the

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 ?

is abundance of evidence in her favour under the The case arose on demurrers to the pleadings, first count; and under the second she ought to have which will sufficiently appear from the judgment of taken out administration were it not for the law of Erle, C.J.

domicil, that law of France which enables her to sue

in her own right. I am, therefore, of opinion on the 1. Smith, Q.C., appeared for the plaintiff, and

demurrer to each count, that the plaintiff is entitled Lush, Q.C., for the defendant.

to our judgment. The following authorities were cited :

Now, as to the pleas demurred to-the first plea is Attorney-General v. Bouwens, 4 M. & W. 171 ; clearly bad, for the reasons stated in reference to the Ord v. Fenwick, 3 East, 104;

declaration. White v. Rose, 4 Jur. 986 ;

So, also, is the eleventh, which says, that the debt Bank of Australasia v. Nias, 16 Q. B. 717 ;

is only due to the plaintiff as administratrix. Plummer v. Woodburne, 4 B. & C. 625 ;

The twelfth plea says, that the judgment against the Smith v. Vicholls, 5 Bing. N. C. 208, 222 ;

defendant in the French Court went by default, and Patrick y. Sheddon, 22 L. J. Q. B. 283 ;

would be reversed if he entered an appearance. This Simpson v. Pogo, 32 L. J. Ch. 249 ;

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;

then. Story's Conflict of Laws, sec. 513 (5th ed.);

The thirteenth plea states certain facts, to show 1 Williams' Exors. 786 (5th ed.).

that the Court there had no jurisdiction-those facts

might have been tried there. ERLE, C. J.-In this case there are some questions The eighteenth plea alleges that the consideration for raised as to the French law. The deceased was the the acceptance of the bill was an agreement between drawer, and the defendant the acceptor, of some bills the deceased and the defendant that money was to be of exchange, and W brought an action against the raised thereon for a joint speculation, and that they drawer and acceptor, and recovered judgment against were to share the profits after the bills had been paid, both of them. Then Vanquelin died, and his widow and that the deceased had received enough in the (the plaintiff) became the universal donee of his pro- transaction to pay the amount of the bills. So much perty, and the owner of it in her own right. The of this plea as applies to the first count, is bad, but it first count alleges that she paid W the principal and is good to the second count—therefore, on that part of interest of the bill and his costs, and that he then the eighteenth plea which relates to the second count, handed the bill to her :-and then, according to the our judgment must be for the defendant, and on all Freach law, she had all the rights of the holder of a the other parts of the case for the plaintiff. bill-i. c., she had the same rights that w had before.

WILLIAMS, J.-I am also of opinion that our judg. She then proceeded in the tribunal of Orleans, and it

ment in this case must be substantially for the plainwas there adjudicated that she should recover from the tiff. Tyler v. Bell, (2 Myl. & Cr. 39,) and Price v. defendant the principal, interest, and costs which she Dewhurst, (4 ia. 76,) are both of them authorities in had paid W, and the costs of that decision as well.

her favour. This is a right which she has acquired The second count alleges that, in her own right, she

after her husband's decease, and which never formed became the holder of the bill at the death of her

part of his estate. husband, and stood, by the law of France, exactly in

These observations do not apply to the second count;

and as to that I feel some difficulty, but as my Lord The demurrers to these counts allege that she really and my brother Keating agree upon it, I do not feel sufsues in a representative capacity, and, therefore, can

ficiently strong to differ from them. There is no doubt not do so without taking out letters of administration.

that by the law of England, an executor may in some She says she sues in her own right according to the

cases both sue and be liable in his own right. Mcrlaw of France, and here this statement must be taken

chant v. Driver (1 Wm. Saund. 306). as correct. It is not even necessary to rely on the second count, as it appears from the first, that, after KEATING, J.-I agree with my Lord on both counts. the death of her husband, she actually paid the bill, Here we are bound by the laws of France, and by those and thus became the legal holder of it, independently laws the plaintiff was entitled to sue in her own right; of the position she stood in as universal donee before 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 representative ment 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

his position.

she paid it.

ing to our own laws, questions which ought to be tried | franchise here was gained, and that the revising barthere.

rister was wrong. The plaintiff is therefore entitled to our judgment

Williams and KEATING, JJ., concurred. on all the pleadings demurred to, except to so much of

Decision reversed. the eighteenth plea as relates to the second count,

Judgment accordingly.

C. P.
21 Nov. 1863. ]

BENNETT, Appellant, v. BLAIB, }

Respondent. C. P.

HENRETTE, Appellant, v. Booth, 21 Nov. 1863.


Registration Appeal-Right to Vote-Shares in Registration Appeal-Right of Voting-Occu

an Unincorporated Company. pier of a HouseModel Lodging House. A shareholder in an unincorporated company, the Occupiers of independent dwellings in a model lodg- entitled each holder to a share of the profits arising out

shares in which were held in respect of land, but only ing house, are occupiers of houses within the meaning

of such land, was of 2 Will. 4, c. 45, s. 27.

Held, not entitled to a vote. This was an appeal from the decision of the revising

This was an appeal from a decision of the revising barrister of London. The whole question was, whether barrister for the southern division of Lancashire. The the claimant was an occupier of a house within the claimant was a proprietor of a share in the Manchester principle of the decision of

Corn Exchange. The shares were held by a company, Cook v. Humbcr, 11 C. B. (N. S.) 33.

the affairs of which were under the management of a In the present case, the claimant was tenant of a

committee of shareholders. The company had been only floor in a model lodging house in Honeysuckle Square, provisionally registered under the 7 & 8 Vict. c. 110, Cripplegate, occupying two rooms opening on a stair

never having received their certificate of completa case common to all his other fellow-tenants. The

registration. By their deed of settlement, the shares house itself was entered by a door at the end of a

were expressed to be personalty. Their property, the common passage, and was sometimes left open, some

Corn Exchange, was freehold, and the land was intimes closed. The claimant had a key to his own door vested in trustees for the company. The barrister on the staircase, and went in and out of the house as disallowed the vote. he chose. The revising barrister having disallowed his vote, the present appeal was brought.

Hannen, for the appellant.

Welsby, for the respondent. Knighte, Serjt. (Underdown with him), for appellant.

Balmer v. Morris, 9 C. B. (N. s.) 19, Overend, Q.C. (Fawcett with him), for respondent.

was cited.

ERLE, C.J.-I am of opinion the revising barrister ERLE, C.J. - I am of opinion that the revising

was right in holding that the appellant was not entitled barrister is wrong, and that the claimant ought to have his franchise. He was the occupier of a house within interest in land : at the same time the barrister was

to vote ; the shareholder in this company had no the meaning of the cases decided. He occupied the whole of the upper floor, which communicated with wrong in thinking that the company was in the nature the landing on the stairs, and the outer door of his of a corporation. The land on which the Corn Ex. own dwelling was exclusively under his control. The change was built was to be vested in trustees under tenement was a separate house within the judgment of the deed, and the committee of management were to the case of Cook v. Humber. The Court, in that case, of this was to give each shareholder a right to call for

divide the profits among the shareholders. The effect felt great difficulty in trying to find some definite idea as to what constituted a house, when it might be his share of the profits, but no right to the land. that several houses were under one roof; but the WILLIAMS and KEATING, JJ., concurred. Court were necessitated to hold there might be several

Decision afirmed. houses under one roof. A house might be divided by a party-wall; or there might be an intention of creat

C.P. ing a separate tenement on each floor.

CAUNTER, Appellant, v. ADDAMS, Each floor

} 21 Nov. 1863.

Respondent. would then become a separate house. A house might be so constructed as to have the additional defence of

REGISTRATION APPEAL. a door to a passage, or at the bottom of a passage. Notice of ClaimValidity of Appointment of That could not prevent a house such as the claimant's

Assistant Overseer. from being a separate house. A separate house depends on its severance, and not on such a thing as An assistant overseer tendered his resignation, and handing a key over to the landlord. I think the afterwards withdrew it upon his salary being raised,

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