At the second trial, among others, two questions arose, First, Whether the road on which the right was claimed was to be exactly of the breadth of 30 feet, or whether it was the space between stakes which had been put down before the conveyance had been made by one Meyers to the plaintiffs of the road in question. This depended on the construction of the deed, which professed to pass exactly 30 feet, there being evidence that the words "or thereabouts" had been struck out, at the request of Meyers, before the deed was signed. The learned Judge left the question to the jury, whether exactly 30 feet passed, or whether the land between the stakes? The jury found that exactly 30 feet passed, and not the land between the stakes. On this depended the question of the property in a wall which bounded this road, and which the defendants, claiming as their own, had pulled down. The jury having found this road to be less than 30 feet in fact, it followed that the wall was on the plaintiffs' land, and they, therefore, gave damages to the plaintiffs. way. The second great question was, as to the use of the The defendants, it appeared, had carried building materials along the road on to the land which they held of Wheeler: and thence moved them in hods and barrows on to other land where they were building houses. This the plaintiffs contended was a mis-use of the way. The Judge left it to the jury to find whether, under the circumstances, such user was colourable or not. The jury found that it was colourable, and gave damages. 6 Nov. 1863. Lush, Q.C. (A. K. Stephenson with him), now moved for a new trial, on the ground of misdirection. 1st. In having left to the jury the question, whether the land conveyed by Meyers to the plaintiffs, by the deed of June 6th, 1860, was contained within the stakes, or was land of the exact width of 30 feet, as mentioned in the deed. 2nd. In leaving to the jury the question, whether the defendants used the way as a way to the houses they were building on Wheeler's land, or whether it was a mere colourable use, and telling them to find for the plaintiffs with damages if the defendants used the way in question to Wheeler's land, and thence to houses they were building on other lands. On both these two points, and on two others which need not be mentioned, Rule nisi. The following authorities were cited in the course of the argument: Doe d. Norton v. Webster, 12 Ad. & E. 442; Colchester v. Roberts, 4 M. & W. 769, 773; ERLE, C. J.-This action was brought for an alleged trespass on land, granted by Meyers to Skull, by deed, in 1860. The question here arose, what was the boundary of the land? This ought to be ascertained by the deed. The words are, "all that piece or parcel of land situate, &c., measuring in width from east to west thirty feet, lately forming part of, &c., and which is more particularly delineated and described in the map or plan drawn in the margin." This question of boundary the Judge left to the jury. There was evidence of stakes having been driven in, and this would have been very good evidence to go to the jury, that they had been driven in to indicate to the surveyor employed how the road was to be marked out. The plaintiffs say they were entitled to 30 feet, and, therefore, that the defendants have encroached. The jury found the land was to be 30 feet. I am of opinion the Judge did not leave this rightly. The question of the construction of a deed is for the Court. The Court should be informed of all the sur rounding circumstances. These should be decided by the jury, and then the Court should decide on the deed. Here there was a material fact, to have been left to the jury; viz., whether the stakes had been put in to indicate to the surveyor how he should measure the road. If they had found this either way, the Judge would have given effect to their decision. The question was not thus left, so the case must go to a jury again on this point. With regard to the second point, I think the direc tion of the Judge, as to the right of way, was correct. It seems the right of way was only for Wheeler's close. If they only used it as a mode of transit from this close to another, such user would not be lawful. It was used colourably to carry materials into Glenister's close. The question was, did he really use the way as a means of access to Wheeler's close or Glenister's close. It is needless to go into the other grounds on which the rule was granted, as there must be a new trial on the first point mentioned, unless the plaintiffs Lush, Q.C., and A. K. Stephenson, supported the allow the verdict to be entered for the defendants as to 12, 13 JAN. 1864. O'Malley, Q.C, Mellish, Q.C., and Keane now showed cause. 16 JAN. 1864. rule. that point, and keep it as to the rest. WILLIAMS, J.-I am glad to concur with my Lord in effecting this compromise. I agree that the Judge was wrong in the way in which he left the first question to the jury. It was a question for him and not for them. The jury should ascertain the circumstances, and the Judge should then say what would be the effect of the deed. The stakes were put down for the purposes of the grant, and being so put down the grant was made. The plaintiffs say the piece of land was to be exactly 30 feet. It is difficult to go with them in their construction that the stakes were put down as a guide, but with the intention, that where they were not found to be exactly 30 feet apart, the distance should be augmented. It certainly seems to me that the facts not controverted should have led the Judge to tell the jury that nothing passed but what was between the stakes. As to the second point the direction was substantially correct. The cases collected in Gale on Easements, 451 and 452, establish the proposition that if the defendants used this road as a way through Wheeler's close to Glenister's close it would have been in excess of their right. WILLES, J.-I am of the same opinion. As to the first point my opinion was different, but Mr. Stephenson's argument made a great impression on me, and I am now convinced by my Lord. In the other part of the case I agree with my Lord and my Brother Williams. The simplest way to avoid any difficulty about costs will be, to let the verdict stand for the plaintiffs on the first count, and the defendants on the second; that is to say, for the plaintiffs on the count for using the road, and for the defendants on that for pulling down the wall. party containing the above words, "owners of the A 1 Br. brig." This was an action to recover moneys which the plaintiffs had been compelled to pay as extra premiums for insurance, by reason of a certain vessel, chartered to the plaintiffs by the defendants, not being of the class warranted in the charter-party. The plaintiffs were merchants at New York, and the defendants shipowners carrying on business at Liverpool. The plaintiffs, in December, 1861, having received an order for some wheat, entered into a charter-party with the defendants, through their agent, Periam, for the hire of the defendants' vessel the "Hannah Eastee." The following were the material parts of the charterparty :— "This charter-party, made and concluded upon, in the city of New York, this 6th of January, 1862, between Gilbert Periam, agent for owners of the A 1 Br. brig, Hannah Eastee,' of Liverpool, of the burthen of 212 tons, or thereabouts, of the first part, and Messrs. H. L. Routh and Sons, merchants, of New York, of the second part, witnesseth, &c., . . . . to the true performance of all the foregoing covenants, &c., the parties bind themselves, the vessel, freight, tackle and appurtenances, and the merchandise to be laden on board, each to the other in the final sum of 6001. sterling." The above-named Periam entered into the said charter-party in pursuance of a power of attorney executed to him by the defendants, and dated 20th of September, 1861. The following were the material parts of the power : "Know all men by these presents that we (the defendants) the registered owners of sixty-four sixty. fourth shares of the British brig 'Hannah Eastee,' of Liverpool, aforesaid, of the burthen of 227 tons, by British measurement, or thereabouts, do make, constiRule accordingly.tute, &c., Gilbert Periam, of, &c., our true and lawful attorney for us and in our names, or otherwise, as occasion may require to sue for, &c., or take possession of the said brig 'Hannah Eastee,' with her stores, &c., and from time to time to charter the said brig as a general vessel on any voyage or voyages, at such times and in such manner, in all respects, as our said attorney shall think proper, and also to sell, &c.; and also to enter into and sign, or sign seal and execute, all ROUTH and Others v. MACMILLAN and Others. A1-Authority under Power of Attorney. 1. Where the defendants were described in a charter- such instruments, bills of sale, deeds or other documents, party, as owners of the A 1 Br. Brig":: as may be necessary for carrying such sale or sales, Held, that such words amounted to a warranty of the transfer or transfers, exchange or exchanges, and other vessel's class. matters or things hereinbefore mentioned or referred 2. Where a power of attorney authorised an agent to to into effect. . . . . And generally to act for and "charter the sail brig in such manner as he should represent us and each of us, in all respects in relation think proper, and to do all acts, &c., requisite for that to the premises, and generally in relation to the said purpose, although the same might not be specially men-brig, her management or sale as fully in all respects as tioned in the power," but the brig was not described in if we were personally present, and to do all acts, the power as A 1:— matters and things requisite for that purpose although the same be not specially mentioned." Held, that the defendants were liable for the consequences of their agent having entered into a charter The vessel having been loaded in pursuance of the above charter-party, the plaintiffs, on the 1st of February, forwarded to Messrs. R. & H. Adams, of Bristol, who were the consignees of the cargo, the bills of lading and invoice, and bills of exchange amounting to 3,1127. 5s. for acceptance. One Hellicar, of Bristol, was the agent of the plaintiffs there, and it was through him that the order for the wheat had been transmitted. Within a day or two after receiving advice of the charter of the 'Hannah Eastee,' Messrs. Adams informed Hellicar that they had learnt that the brig was not an A1 vessel, nor had she any class at Lloyds'; that they would, therefore, reject the vessel and her cargo, as the premium of insurance would, in consequence of her not answering the description in the charter-party, be much higher than it otherwise would have been. Ultimately, it was arranged between Hellicar and Messrs. Adams, that the latter should accept the cargo, and that Hellicar should repay them any additional premiums for insurance they might have to pay beyond what would have been necessary had the vessel been, at the time of the charter-party, classed A 1 at Lloyds'. It afterwards appeared that the "Hannah Eastee" was built in 1841, and originally classed in Lloyds' register as an A 1 ship for 12 years; that in 1853 her class was continued, and that subsequently she became an A 1 red letter ship; but at the time of the charter-party, in question, she had no class at all. The current rate of insurance upon cargoes of grain in vessels classed A 1 black letter at Lloyds' upon voyages from New York to Gloucester, in the months of January and February, 1862, was 51. per cent. The plaintiffs, however, could only insure the cargo at a much higher rate, and for the excess which they were so compelled to pay, the action was brought. At the trial at the last Bristol Spring Assize, a verdict was found for the plaintiff for 2627. 14s., subject to leave to move to enter the verdict for the defendants. A rule accordingly having been obtained, Karslake, Q.C., and H. T. Cole, showed cause :1st. Periam had authority under the power of attorney to describe the vessel in the manner he did, Willis v. Palmer, 7 C. B. (N. s.) 340. Then as to the meaning of the expression. A 1 applied to a British ship, must mean A 1 at Lloyds'. Ollive v. Booker, 1 Exch. 416; Bannerman v. White, 10 C. B. (N. 8.) 844; 31 L. J. C. P. 28; were also cited. M. Smith, Q.C., and H. Bullar, in support of the rule. Behn v. Burners, ubi suprà, shows that the surrounding circumstances must be looked at, in order to see whether the parties themselves intended this to be a warranty. The ship was not described in the power of attorney as an A 1, and any one in dealing with an agent is bound to ascertain the power of the agent, Brady v. Todd, 9 C. B. (N. s.) 592; 30 L. J. C. P. 223; S. M. L. pp. 118, 119; and Udell v. Atherton, 7 H. & N. 172; 30 L. J. Ex. 337. In June, 1861, the vessel had run off her list, and it cannot, therefore, be said that the defendants intended to authorise the statement made. The word charter in the power of attorney means ordinarily "to let." and a statement as to the class of a ship would not be included thereunder, Attwood v. Munnings, 7 B. & C. 278. [BRAMWELL, B.-There would be no necessity in the power, as between principal and agent, to land the vessel.] No doubt the important question is, "Does the description here used amount to warranty !” As to what are words of mere description, and what amount to warranty, see Budd v. Fairmaner, 8 Bing. 48. There is no consideration in the charter-party which could apply to such a warranty. Barker v. Windle, 6 El. & Bl. 675, was also cited. 7 DEC. 1863. POLLOCK, C.B., delivered the judgment of the Court (Pollock, C. B., Bramwell, Channell, and Pigott, BB.) We are of opinion that this rule must be discharged The action was on a charter-party made in New York between two British subjects. It was made by an agent on behalf of the defendants, and commenced by stating that it was made between the charterer and the agent of the defendants "owners of a British ship, A 1." There were two questions in the case: the first, whether there was a warranty or undertaking by the owner, that the vessel was classed as A 1 at Lloyds'? It is decided by authority that such a statement is an undertaking or warranty, and that decision can be Hurst v. Usborne, 18 C. B. 154, 25 L. J. C. P. questioned now in a Court of Error only, if it can be 209; and Behn v. Burners, 2 N. R. 184. 2nd. The words A 1 in the charter-party amounted to a warranty. [POLLOCK, C.B.-The fact whether the vessel was an A 1 ship or not, was open to all the world to find out.] It is only the omission of the word " warranty" that causes any doubt. For cargoes of wheat the very best ships are required. Thompson v. Gillespy, 5 El. & Bl. 209; questioned successfully at all. The other question is, whether the agent had authority to enter into a charter-party with such an undertaking; as to which, we may say, that he had, if any words can give such an authority; for it is impossible that words could have been used more comprehensive than those which are to be found in the power of attorney under which the agent acted. The rule, therefore, in our judgment, must be discharged. Rule discharged. Ex. 13 Nov., 7 DEC. 1863. Articled Clerk Service under Unstamped Articles with Knowledge thereof. B, not having sufficient money of his own, entered into articles, under a promise from his father to make up the sum requisite for the stamp duty within six months of the date of execution. The father having failed in so doing, B continued to serve under the articles, knowing them to be unstamped, and after taking counsel's opinion on the subject. At the close of his service, the clerk, for the first time, was enabled to raise sufficient money for the duty and penalty, and upon application to the Lords of the Treasury, they granted permission, (under 19 & 20 Vict. c. 81, s. 3,) for the articles to be stamped, upon payment of the duty and penalty, which was done. On application to the Court to permit the articles to be enrolled, and service under them to be computed from the date of their execution, the Court granted partial relief, and allowed two years of the service to count. This was an application that the service of George Belk, under articles of clerkship, executed on the 4th of November, 1857, might be computed from the day of the execution thereof, notwithstanding the affidavit of execution was not filed within six months, as required by statute 6 & 7 Vict. c. 73, s. 8; and it was supported by affidavits of the applicant, of his father, and of the attorney to whom the applicant had been articled. The affidavits stated that in the year 1857, the applicant was desirous of being articled to an attorney, and that he told his father that he had 551. only towards payment for the stamp; that his father then promised to find the remainder of the money before the end of the next six months, and advised his son to have the articles executed at once; that, trusting to such promise, the applicant executed articles of clerkship to one W. Smith, on the 4th of November, 1857; that from losses in business, the father was unable to advance the remainder of the money for the stamp duty, and the son having no means of paying the same, continued to serve under the articles; that soon after the expiration of the said six months, applicant consulted counsel on the subject, who advised him that it was unnecessary that fresh articles should be entered into, but that if authority were obtained to stamp the existing articles under the 19 & 20 Vict. c. 81, and the duty and penalty were paid, the articles would be effectual; that in consequence of the said advice, applicant continued to serve under the articles, and his father not advancing the money, applicant at the end of the year 1862 was enabled for the first time to raise a sufficient sum to pay the duty and penalty; that in November, 1862, upon application to the Commis sioners of the Treasury, they directed that the articles should be stamped upon payment of 801. for duty, and 501. penalty, which sums were paid, and the articles stamped; that the articles were not entered into as a matter of speculation, nor was there any fraudulent design in not stamping the articles at the proper time, &c., and the duty and penalty had been paid in the belief that thereby the service under the articles would be made effectual; and that the applicant had faithfully served under the articles. A similar application to the present was made in the first instance to the Court of Queen's Bench, which was refused. Subsequently, application was made on additional facts to this Court, and the applicant was directed to go first with the additional facts to the Queen's Bench. This was done, but that Court thought it advisable, on account of the present conflicting decisions in the matter, that the application should be made to the Court of Exchequer. Hayes, Serjt., in support of the application. Section 2 of 34 Geo. 3, c. 14, is compulsory as to the service being computed only from the time of registry, Ex parte Pilgrim, 1 B. & C. 264; but the words of section 9 of 6 & 7 Vict. c. 73, are, "unless one of the Courts of Law or Equity shall section 4 of 7 Geo. 4, c. 44, this must have been done otherwise order." As to the stamping of articles, by within six months; but the Act of 19 & 20 Vict. c. 81, is the one now in force, and section 3 enables the Commissioners of the Treasury to order articles to be duty and penalty have been paid, and if this applicastamped upon payment of duty and penalty. This is defeated. The 7 & 8 Vict. c. 86, is like an indemnity tion be not granted, the whole object of the last Act Act. [CHANNELL, B.-It still leaves us a discretion in the matter.] taken, and he recommended a continuance of service, My new fact is, that the advice of counsel was and an ultimate application to the Lords of the Treasury, Ex parte Norton, 26 L. J. Q. B. 24. it does not appear that the clerk was ignorant of the Ex parte Herbert, 1 B. & S. 825; Ex parte Breden, 2 B. & S. 649, and 12 C. B. (N. s.) 351; Ex parte Edwards, 2 N. R. 122; Ex parte Broster, Bail Court, coram Coleridge, J., 25 April, 1850, and Arch. Pr. p. 35; were also cited. The Court having intimated an intention to speak to the learned Judges of the Court of Queen's Bench before giving judgment, 7 DEC. 1863. POLLOCK, C. B., delivered the following judgment of the Court (Pollock, C.B., Bramwell, Channell, and Pigott, BB.): In this case, after consulting with the Judges of the Queen's Bench, we think the application may be granted so far, that the service under the articles shall be reckoned to have commenced at, and to be computed from, the expiration of three years from their date. The applicant will, therefore, have the benefit of the stamp on the articles, and two years of the service already performed. Our opinion is, that the provisions for the filing of the affidavit, and the enrolment of the registration of the contract in the 6 & 7 Vict. c. 73, s. 8, are not merely for the purposes of the revenue, but also for assisting in securing the due fitness of persons who are to be admitted as attorneys in the Courts of Westminster Hall. It seems to us, therefore, that it is not enough that the Treasury is satisfied, but that we ought to take care also that the other objects of the statute are not frustrated; and consequently, if it appeared that the omission to stamp the articles, and so to enrol them and the affidavit, were wilful on the part of the clerk, whether because not stamped, or for any other reason, we should not interfere to assist him; in other words, we think we must consider this question as we should do if the articles had been properly stamped at first, but the affidavit had not been made, and the articles had not been enrolled or registered by the clerk's desire; except, of course, that the cause of such non-enrolment and registration must be regarded, and in this case we must look at the want of the stamp as the cause. The continued service under the unstamped articles was with notice, and was wilful; but it appears by the affidavit that the omission to stamp and to enrol and register was not wilful, but the result of what has been called an "emergency," and arose partly, also, in consequence of an opinion given by a learned counsel. We therefore think that some relief may be given; but the explanation is to such an extent unsatisfactory, and it is so desirable to prevent the occurrence of such proceedings, that we think it right that only two years of the service shall count in furthering the admission of the applicant. NOTE. See also, Ex. 24 Nov., 7 DEC.1863. Application granted in part. 1 N. R. 321. HUGHES V. MACFIE and Others. Obstruction of Highway-Contributory The defendants were owners of a cellar opening into a street, and which was ordinarily covered by a lid or flap. When goods were being put into the cellar, this lid was removed and placed a short distance off in the street, leaning against the wall of the defendant's premises. The plaintiffs (who were children of about seven years old) were playing about this lid, when the plaintiff, Hughes, climbed up upon it, and then jumpoi off, causing it to fall on himself and Abbott, by which both were severely injured. Held, that as Hughes had contributed to the accident by his own negligence, he could not recover, although being a child of tender age, he might not have understood the danger he incurred. Semble, that Abbott could recover. In this case the plaintiffs sued on account of the injury they had sustained through the defendant having left certain obstructions in the highway. The declaration in each action stated that the defendants by their servant on, &c., wrongfully and unlawfully threw and laid certain timber, iron, and other materials in and upon a certain public street in the borough of Liverpool, called Cheapside, being a common public highway, to the great danger and annoyance of all persons using the said street, and contrary to an Act of Parliament, 5 & 6 Vict., entituled "An Act for the improvement, good government, and police regulation of the borough of Liverpool," whereby the said timber, iron, and other materials, fell upon and struck against the plaintiff without any fault of his, and whilst he was lawfully in the said public street or highway, and thereby the plaintiff was thrown down and grievously wounded, bruised, &c., and incurred great expense, &c. The second count alleged that the plaintiffs had so wrongfully, &c., placed a certain cellar-lid in a public street, &c., that the same fell down upon and struck against the plaintiff, whereby he was thrown down and grievously wounded, &c. Pleas : 1st. Not guilty. 2nd. To first count, that defendant did not wrong. fully and unlawfully throw and lay certain timber, &c., in and upon the said highway. 3rd. To both counts. That the alleged injuries in those counts mentioned were caused by the negligence and improper conduct of the plaintiff. On these pleas issue was joined. The cause was tried at the Passage Court, at Liverpool, when it appeared that the defendants were sugar refiners, and that one of their warehouses was situate in Cheapside, Liverpool. Underneath the side of the warehouse nearest the street is a cellar in constant use, entered by a flap or lid. When goods were being placed in the cellar, it was the custom of the defendants' servants to lift up this lid by a crane, and swing it round so as to place it leaning against a wall four or five feet from the cellar. The lid, which was of great weight and solidity, was made of wood, strengthened on the lower line by three large cross bars, and when the lid was placed against the wall, |