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At the second trial, among others, two questions The following authorities were cited in the course of arose,
the argument : First, Whether the road on which the right was Doe d. Norton v. Webster, 12 Ad. & E. 442; claimed was to be exactly of the breadth of 30 feet, Allan v. Gomme, 11 Ad. & E. 759 ; or whether it was the space between stakes which had Lawton v. Ward, 1 L. Raym. 75; been put down before the conveyance had been made Howell v. King, i Mod. 190 ; by one Meyers to the plaintiffs of the road in question. Colchester v. Roberts, 4 M. & W. 769, 773;
This depended on the construction of the deed, Dand v. Kingscote, 6 M. & W. 174 ; which professed to pass exactly 30 feet, there being Waterpark v. Pennell, 7 H. of L. Ca. 650, 684 ; evidence that the words “or thereabouts” had been Gerish v. Chartier, 1 C. B. 13; struck out, at the request of Meyers, before the deed Ackroyd v. Smith, 1 0. B. 164; was signed. The learned Judge left the question to Henning v. Burnett, 8 Exch. 187; the jury, whether exactly 30 feet passed, or whether Manning v. Fitzgerald, 29 L. J. Ex. 24; the land between the stakes? The jury found that Gale on Easements, 451, 452. exactly 30 feet passed, and not the land between the stakes. On this depended the question of the property ERLE, C. J.-This action was brought for an alleged in a wall which bounded this road, and which the trespass on land, granted by Meyers to Skull, by deed, defendants, claiming as their own, had pulled down. in 1860. The question here arose, what was the The jury having found this road to be less than 30 boundary of the land ? This ought to be ascertained feet in fact, it followed that the wall was on the by the deed. The words are, "all that piece or parcel plaintiffs' land, and they, therefore, gave damages to of land situate, &c., measuring in width from east to the plaintiffs.
west thirty feet, lately forming part of, &c., and which The second great question was, as to the use of the is more particularly delineated and described in the way. The defendants, it appeared, had carried build map or plan drawn in the margin." This question ing materials along the road on to the land which of boundary the Judge left to the jury. There they held of Wheeler : and thence moved them in hods was evidence of stakes having been driven in, and and barrows on to other land where they were building this would have been very good evidence to go to the houses. This the plaintiffs contended was a mis-use of jury, that they had been driven in to indicate to the the way.
surveyor employed how the road was to be marked out. The Judge left it to the jury to find whether, under the plaintiffs say they were entitled to 30 feet, and, the circumstances, such user was colourable or not. therefore, that the defendants have encroached. The The jury found that it was colourable, and gave jury found the land was to be 30 feet. damages.
I am of opinion the Judge did not leave this rightly.
The question of the construction of a deed is for the 6 Nov. 1863.
Court. Lush, Q.C. (4. K. Stephenson with him), now moved The Court should be informed of all the sur for a new trial, on the ground of misdirection. rounding circumstances. These should be decided by
1st. In having left to the jury the question, whether the jury, and then the Court should decide on the the land conveyed by Meyers to the plaintiffs, by the deed. Here there was a material fact, to have been deed of June 6th, 1860, was contained within the left to the jury; viz., whether the stakes had been stakes, or was land of the exact width of 30 feet, as put in to indicate to the surveyor how he should mentioned in the deed.
measure the road. If they had found this either 2nd. In leaving to the jury the question, whether way, the Judge would have given effect to their the defendants used the way as a way to the houses decision. they were building on Wheeler's land, or whether it The question was not thus left, so the case must go was a mere colourable use, and telling them to find to a jury again on this point. for the plaintiffs with damages if the defendants used With regard to the second point, I think the directhe way in question to Wheeler's land, and thence to tion of the Judge, as to the right of way, was correct
. It houses they were building on other lands.
seems the right of way was only for Wheeler's close. If On both these two points, and on two others which they only used it as a mode of transit from this close need not be mentioned,
to another, such user would not be lawful. It was
Rule nisi. used colourably to carry materials into Glenister's 12, 13 JAN. 1864.
close. The question was, did he really use the way as O'Malley, Q.Cu, Mellish, Q.C., and Keane now a means of access to Wheeler's close or Glenister's showed cause.
close. It is needless to go into the other grounds on
which the rule was granted, as there must be a new 16 JAN. 1864.
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 rule.
that point, and keep it as to the rest.
Williams, J. -I am glad to concur with my Lord party containing the above words, "owners of the A 1 in effecting this compromise. I agree that the Judge Br. brig." was wrong in the way in which he left the first ques. tion to the jury. It was a question for him and not This was an action to recover moneys which the for them. The jury should ascertain the circumstances, plaintiffs had been compelled to pay as extra premiums and the Judge should then say what would be the for insurance, by reason of a certain vessel, chartered effect of the deed.
to the plaintiffs by the defendants, not being of the The stakes were put down for the purposes of the class warranted in the charter-party. The plaintiff's grant, and being so put down the grant was made. were merchants at New York, and the defendants The plaintiffs say the piece of land was to be exactly shipowners carrying on business at Liverpool. The 30 feet. It is difficult to go with them in their con plaintiffs, in December, 1861, having received an order struction that the stakes were put down as a guide, for some wheat, entered into a charter-party with the but with the intention, that where they were not found defendants, through their agent, Periam, for the hire to be exactly 30 feet apart, the distance should be aug. of the defendants' vessel the “Hannah Eastee." mented. It certainly seems to me that the facts not The following were the material parts of the chartercontroverted should have led the Judge to tell the jury party that nothing passed but what was between the stakes. “This charter-party, made and concluded upon, in
As to the second point the direction was substanti. the city of New York, this 6th of January, 1862, ally correct. The cases collected in Gale on Easements, between Gilbert Periam, agent for owners of the A 1 451 and 452, establish the proposition that if the Br. brig, 'Hannah Eastee,' of Liverpool, of the defendants used this road as a way through Wheeler's burthen of 212 tons, or thereabouts, of the first part, close to Glenister's close it would have been in excess and Messrs. H. L. Routh and Sons, merchants, of New of their right.
York, of the second part, witnesseth, &c., .... to
the true performance of all the foregoing covenants, WILLES, J.-I am of the same opinion. As to the &c., the parties bind themselves, the vessel, freight, first point my opinion was different, but Mr. Stephen- tackle and appurtenances, and the merchandise to be -son's argument made a great impression on me, and I | laden on board, each to the other in the final sum of am now convinced by my Lord. In the other part of 6002. sterling." The above-named Periam entered the case I agree with my Lord and my Brother into the said charter-party in pursuance of a power of Williams.
attorney executed to him by the defendants, and The simplest way to avoid any difficulty about costs dated 20th of September, 1861. will be, to let the verdict stand for the plaintiffs on the The following were the material parts of the first count, and the defendants on the second ; that is power :to say, for the plaintiffs on the count for using the “Know all men by these presents that we (the road, and for the defendants on that for pulling down defendants) the registered owners of sixty-four sixty. the wall.
fourth shares of the British brig ‘Hannah Eastee,' of
Liverpool, aforesaid, of the burthen of 227 tons, by KEATING, J., concurred.
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 Ex. ROUTH and Others .
of the said brig ‘Hannah Eastee,' with her stores, &c., } 3, 4, Nov., 7 Dec. 1863. MACMILLAN and Others.
and from time to time to charter the said brig as a
general vessel on any voyage or voyages, at such times Charter-party Warranty A1-Authority and in such manner, in all respects, as our said under Power of Attorney.
attorney shall think proper, and also to sell, &c. ; and
also to enter into and sign, or sign seal and execute, all 1. Where the defendants were described in a charter- such instruments, bills of sale, deeds or other documents, party, as ouners 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 Held, that the defendants were liable for the conse- the same be not specially mentioned." quences 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 Feb. Bannerman v. White, 10 C. B. (X. s.) 844 ; 31 ruary, forwarded to Messrs. R. & H. Adams, of Bristol, L. J. C. P. 28; who were the consignees of the cargo, the bills of lad. I were also cited. ing and invoice, and bills of exchange amounting to
M. Smith, Q.C., and H. Bullar, in support of the 3,1121. 58. for acceptance,
rule. Behn v. Burners, ubi suprà, shows that the One Hellicar, of Bristol, was the agent of the surronnding circumstances must be looked at, in order plaintiffs there, and it was through him that the order to see whether the parties themselves intended this for the wheat had been transmitted. Within a day or
to be a warranty. The ship was not described in the two after receiving advice of the charter of the Hannah Eastee,' Messrs. Adams informed Hellicar power of attorney as an A 1, and any one in dealthat they had learnt that the brig was not an A i ing with an agent is bound to ascertain the power
of the agent, vessel, nor had she any class at Lloyds' ; that they
Brady v. Todd, 9 C. B. (X. s.) 592; 30 L.J.C.P. would, therefore, reject the vessel and her cargo, as
223 ; S. M. L. pp. 118, 119; and the premium of insurance would, in consequence of her
C'dell v. Atherton, 7 H. & N. 172 ; 30 L. J. Ex. not answering the description in the charter-party, be
337. much higher than it otherwise would have been.
In June, 1861, the vessel had run off her list, and it Ultimately, it was arranged between Hellicar and cannot, therefore, be said that the defendants intended Messrs. Adams, that the latter should accept the cargo, to authorise the statement made. The word charter and that Hellicar should repay them any additional in the power of attorney means ordinarily " to let," premiums for insurance they might have to pay and a statement as to the class of a ship would not be beyond what would have been necessary had the vessel
included thereunder, been, at the time of the charter-party, classed A 1 at
Attwood v. Munnings, 7 B. & C. 278. Lloyds'. It afterwards appeared that the “Hannah
[BRAMWELL, B.— There would be no necessity in Eastee" was built in 1841, and originally classed in Lloyds' register as an A 1 ship for 12 years ; that in the power, as between principal and agent, to laud
the vessel.) No doubt the important question is, 1853 her class was continued, and that subsequently she became an A 1 red letter ship ; but at the time of as to what are words of mere description, and what
“Does the description here used amount to warranty!" the charter-party, in question, she had no class at all. The current rate of insurance upon cargoes of grain in
amount to warranty, see vessels classed A i black letter at Lloyds' upon
Budd v. Pairmaner, 8 Bing. 48.
There is no consideration in the charter-party which voyages from New York to Gloucester, in the months of January and February, 1862, was 51.
could apply to such a warranty.
Barker v. Windle, 6 El. & Bl. 675, per cent. The plaintiffs, however, could only insure
was also cited. the cargo at a much higher rate, and for the excess which they were so compelled to pay, the action was 7 DEC. 1863. brought.
POLLOCK, C.B., delivered the judgment of the Court At the trial at the last Bristol Spring Assize, a (Pollock, C.B., Bramwell, Channell, and Pigott, BB.) verdict was found for the plaintiff for 2621. 148., We are of opinion that this rule must be discharged. subject to leave to move to enter the verdict for the The action was on a charter-party made in New York defendants. A rule accordingly having been obtained, between two British subjects. It was made by an agent
on behalf of the defendants, and commenced by stating Karslake, R.C., and H. T. Cole, showed cause :
that it was made between the charterer and the agent 1st. Periam had authority under the power of attor- of the defendants owners of a British ship, A 1.
" ney to describe the vessel in the manner he did,
There were two questions in the case : the first, whether Willis v. Palmer, 7 C. B. (N. s.) 340. there was a warranty or undertaking by the owner
, Then as to the meaning of the expression. A 1 that the vessel was classed as A 1 at Lloyds'? It is applied to a British ship, must mean A 1 at Lloyds'. decided by authority that such a statement is an
Ollive v. Booker, 1 Exch. 416 ;
undertaking or warranty, and that decision can be
, Behn v. Burners, 2 N. R. 184.
whether the agent had authority to enter into : The cargo required a good dry bottom. 2nd. The words A 1 in the charter-party amounted we may say, that he had, if any words can give saeka
charter-party with such an undertaking ; as to which, to a warranty. [POLLOCK, C.B.— The fact whether the vessel was an A 1 ship or not, was open to all been used more comprehensive than those which are
an authority ; for it is impossible that words could have the world to find out.] It is only the omission of to be found
in the power of attorney under which the the word warranty" that causes any doubt. For agent acted. The rule, therefore, in our judgment, cargoes of wheat the very best ships are required.
must be discharged. Thompson v. Gillespy, 5 El. & Bl. 209;
sioners of the Treasury, they directed that the articles Ex. }
should be stamped upon payment of 801. for duty, and
Ex parte BELK. 13 Nov., 7 DEC. 1863.
501. penalty, which sums were paid, and the articles
stamped ; that the articles were not entered into as a Articled Clerk Service under Unstamped matter of speculation, nor was there any fraudulent Articles with Knowledge thereof.
design in not stamping the articles at the proper
time, &c., and the duty and penalty had been paid in B, not having sufficient money of his own, entered the belief that thereby the service under the articles into articles, under a promise from his father to make would be made effectual ; and that the applicant had up the sum requisite for the stamp duty within six faithfully served under the articles. months of the date of execution. The father having A similar application to the present was made in the failed in so doing, B continued to serve under the first instance to the Court of Queen's Bench, which articles, knowing them to be unstamped, and after was refused. Subsequently, application was made on taking counsel's opinion on the subject. At the close of additional facts to this Court, and the applicant was his service, the clerk, for the first time, was enabled to directed to go first with the additional facts to the raise sufficient money for the duty and penalty, and Queen's Bench. This was done, but that Court upon application the Lords of the asury, they thought it advisable, on account of the present congranted permission, (under 19 & 20 Vict. c. 81, s. 3,) for flicting decisions in the matter, that the application the articles to be stamped, upon payment of the duty should be made to the Court of Exchequer. and penalty, which was done. On application to the
Hayes, Serjt., in support of the application. Court to permit the articles to be enrolled, and service
Section 2 of 34 Geo. 3, c. 14, is compulsory as to under them to be computed from the date of their execution, the Court granted partial relief, and allowed two the service being computed only from the time of
registry, years of the service to count.
Ex parte Pilgrim, 1 B. & C. 264 ;
but the words of section 9 of 6 & 7 Vict. c. 73, are, This was an application that the service of George Belk, under articles of clerkship, executed on the 4th otherwise order.” As to the stamping of articles, by
"unless one of the Courts of Law or Equity shall of November, 1857, might be computed from the day section 4 of 7 Geo. 4, c. 44, this must have been done of the execution thereof, notwithstanding the affidavit within six months ; but the Act of 19 & 20 Vict. c. of execution was not filed within six months, as re
81, is the one now in force, and section 3 enables the quired by statute 6 & 7 Vict. c. 73, s. 8; and it was supported by affidavits of the applicant, of his father
, stamped upon payment of duty and penalty. This
Commissioners of the Treasury to order articles to be and of the attorney to whom the applicant had been duty and penalty have been paid, and if this applicaarticled. The affidavits stated that in the year 1857, the is defeated. The 7 & 8 Vict. c. 86, is like an indemnity
tion be not granted, the whole object of the last Act applicant was desirous of being articled to an attorney,
Act. and that he told his father that he had 55l. only
[CHANNELL, B.-It still leaves us a discretion in the towards payment for the stamp; that his father then
matter.] promised to find the remainder of the
My new fact is, that the advice of counsel was the end of the next six months, and advised his son to taken, and he recommended a continuance of service, have the articles executed at once ; that, trusting to and an ultimate application to the Lords of the such promise, the applicant executed articles of clerk.
Treasury, ship to one W. Smith, on the 4th of November, 1857;
Ex parle Norton, 26 L. J. Q. B. 24. that from losses in business, the father was unable to advance the remainder of the money for the stamp
The omission to stamp was unintentional. In duty, and the son having no means of paying the it does not appear that the clerk was ignorant of the
Ex parte Bishop, 30 L. J. C. P. 48, same, continued to serve under the articles ; that soon after the expiration of the said six months, applicant fiscal one for the consideration of the Treasury,
omission to stamp. The question of stamp is a purely consulted counsel on the subject, who advised him that
Ex parte Herbert, 1 B. & S. 825 ; it was unnecessary that fresh articles should be entered
Ex parte Breden, 2 B. & S. 649, and 12 C. B. into, but that if authority were obtained to stamp the
(N. s.) 351; existing articles under the 19 & 20 Vict. c. 81, and
Ex parte Edwards, 2 N. R. 122; the duty and penalty were paid, the articles would be
Ex parte Broster, Bail Court, coram Coleridge, J., effectual ; that in consequence of the said advice, ap
25 April, 1850, and Arch. Pr. p. 35 ; plicant continued to serve under the articles, and his
were also cited. father not advancing the money, applicant at the end of the year 1862 was enabled for the first time to raise
The Court having intimated an intention to speak a sufficient sum to pay the duty and penalty ; that in to the learned Judges of the Court of Queen's Bench November, 1862, upon application to the Commis- before giving judgment,
7 Dec. 1863.
street, leaning against the wall of the defendants POLLOCK, C.B., delivered the following judgment of premises. the Court (Pollock, C.B., Bramwell, Channell, and The plaintiffs (who were children of about setet Pigott, BB.):
years old) vere playing about this lid, when the In this case, after consulting with the Judges of plaintiff, Hughes, climbed up upon it, and then jumped the Queen's Bench, we think the application may be off, causing it to fall on himself and Abbott, by which grantod so far, that the service under the articles both were severely injured. shall be reckoned to have commenced at, and to be Held, that as Hughes had contributed to the accident computed from, the expiration of three years from by his own negligence, he could not recover, although their date. The applicant will, therefore, have the being a child of tender age, he might not have underbenefit of the stamp on the articles, and two years stood the danger he incurred. of the service already performed. Our opinion is, that Semble, that Abbott could recover. the provisions for the filing of the affidavit, and the enrolment of the registration of the contract in the
In this case the plaintiffs sued on account of the 6 & 7 Vict. c. 73, s. 8, are not merely for the pur-injury they had sustained through the defendant having poses of the revenue, but also for assisting in securing left certain obstructions in the highway. The declarathe due fitness of persons who are to be admitted as tion in each action stated that the defendants hy attorneys in the Courts of Westminster Hall. It seems their servant on, &c., wrongfully and unlawfully to us, therefore, that it is not enough that the Trea- threw and laid certain timber, iron, and other materials sury is satisfied, but that we ought to take care also in and upon a certain public street in the borough of that the other objects of the statute are not frustrated; Liverpool, called Cheapside, being a common public and consequently, if it appeared that the omission to highway, to the great danger and annoyance of all stamp the articles, and so to enrol them and the persons using the said street, and contrary to an Act affidavit, were wilful on the part of the clerk, whether of Parliament, 5 & 6 Vict., entituled " An Act for the because not stamped, or for any other reason, we should l'improvement, good government, and police regulation not interfere to assist him; in other words, we think of the borough of Liverpool," whereby the said timber, we must consider this question as we should do if the iron, and other materials, fell upon and struck against articles had been properly stamped at first, but the the plaintiff without any fault of his, and whilst he affidavit had not been made, and the articles had not was lawfully in the said public street or highway, been enrolled or registered by the clerk's desire ; and thereby the plaintiff was thrown down and except, of course, that the cause of such non-enrol. grievously wounded, bruised, &c., and incurred great ment and registration must be regarded, and in this expense, &c. case we must look at the want of the stamp as the The second count alleged that the plaintiffs had so cause. The continued service under the unstamped wrongfully, &c., placed a certain cellar-lid in a public articles was with notice, and was wilful ; but it ap. street, &c., that the same fell down upon and struck pears by the affidavit that the omission to stamp and against the plaintiff, whereby he was thrown down and to enrol and register was not wilful, but the result of grievously wounded, &c. what has been called an "emergency," and arose
Pleas : partly, also, in consequence of an opinion given by a
1st. Not guilty. learned counsel. We therefore think that some re
2nd. To first count, that defendant did not wronglief may be given ; but the explanation is to such an
fully and unlawfully throw and lay certain timber, extent unsatisfactory, and it is so desirable to prevent
&c., in and upon the said highway. the occurrence of such proceedings, that we think it
3rd. To both counts. That the alleged injuries in right that only two years of the service shall count in those counts mentioned were caused by the negligent furthering the admission of the applicant.
and improper conduct of the plaintiff
. On these pleas Application granted in part.
issue was joined. NOTE. - See also,
The cause was tried at the Passage Court, at Liver-
pool, when it appeared that the defendants were sugar
in Cheapside, Liverpool. Underneath the side of the Ex. 24 Nov., 7 DEC. 1869 | HUGHES v. MACFIE and Others. warehouse nearest the street is a cellar in constant use,
ABBOTT v. Same. entered by a flap or lid. When goods were being Obstruction of Highway-Contributory
placed in the cellar, it was the custom of the defend
ants servants to lift up this lid by a crane, and swing Negligence.
it round so as to place it leaning against a wall four The defendants were owners of a cellar opening into or five feet from the cellar. The lid, which was of a street, and which was ordinarily covered by a lid or great weight and solidity, was made of trond, flap. When goods were being put into the cellar, this strengthened on the lower line by three large crose lid was removed and placed a short distance off in the bars, and when the lid was placed against the wall,