Ex.] GREAT INDIAN PENINSULA RAILWAY COMPANY v. SAUNDERS. [Ex. CH. ew of selling the corn, on his father's behalf, and in-market than if he had gone to the house of a cusading to expose it for sale in the market, or, if he tomer and, sitting down over a glass of wine, they had uld find no buyer there, of selling it anywhere bargained for the sale and purchase of a horse here he could find a buyer, I am by no means or any other chattel. It was not taking advantage rtain that that would not have been a case of the market, as mentioned in several of the cases sitively in point of law entitling deft. to a verdict, which have been cited. If deft.'s son had met the cause I agree with Mr. Grove, that there has never buyer in the market, and had said to him he had better t been a case deciding that a sale by sample, out of go to your shop and deal there, the jury might have e market, is an infringement of the right of market; been warranted in finding an evasion or an attempt to t the case is very bare of any facts tending to prove evade the payment of toll; but, I take it, all that at. All that the case shows is, that the son went to was done here was, as the case finds, done bona fide, e shop of a tradesman on the market-day, and there and I cannot think it was a disturbance of the market. ld to the tradesman, by sample, a quantity of corn, To test the principle, suppose a commercial traveller ich had not been exposed to sale in the market at from London, knowing nothing of the market, goes into e time of the contract. That leaves the matter very the town on a market-day, and sells his goods to a certain, and I do not think it was sufficient evidence tradesman, would that be an infringement of the an infringement of the plts.' right of market. I market right? To hold it so would lead to an absurrbear to remark on the other points alluded to in dity,-the traveller would say, "I want to sell you some e argument. It is enough to say that it appears to rice, but I shall be doing wrong, and be liable to an e that the statement of facts in the ease does not action if I sell it to you here; therefore come out of arrant a judgment for plts., and therefore I am of your shop into the street, and I shall then be liable to inion that judgment should be given for the deft. toll." What is true of the traveller is equally true of the MARTIN, B.-I do not dissent from what has been neighbouring farmer. I see here no evidence of the id by my Lord, but I do not agree with my brothers seller getting the benefit of the concourse of people, ramwell and Wilde. I am of opinion that the facts nor of any disturbance of the market. this case are not set out as they should have been, nd that if they had been, I am of opinion our judgent should have been for plts. I think that the law as rightly laid down in the case of Bridgland v. hapter, and I concur in what Lord Abinger there says, at if a man takes advantage of the market to obtain purchaser for his goods without payment of the market tolls, that is, in a legal point of view, a aud upon the market which is actionable. Now, et us see what the facts of this case are, so ar as we can gather them from the statement of he special case [his Lordship here stated them]. Now, if the case had stated that the deft.'s son went nto the town with the sample in his pocket, designedly, mean knowingly and intentionally for the express urpose of effecting a sale of the corn at the shop, thus scaping the market dues, that would, in my opinion, have entitled plts. to our judgment. As to the word frandulently," I agree with what was said by Sir J. Mansfield, C. J., in the case in 2 Taunt., as to the meaning and purport of that word. I rather infer that the case was what I suspect it to have been; and, though I do not mean to say that a sale by a traveller from London would be an infringement of plts.' right, my opinion is, that, if the real facts were as I cannot help believing them to have been, then plts. would be entitled to recover. WILDE, B.-I am of the same opinion. Plts. rest their claim upon the common law right of the owners of the market. The declaration states that right to be, that "all persons selling corn and grain on the marketdays within the said borough, of right ought to sell the same within the said market, or at their own respective dwelling-houses, shops, or premises, and not elsewhere within the said borough." That right is traversed, and no evidence is given of an immemorial or prescriptive right of market; but it was agreed that some right of market existed. Plts. put in evidence the local Act, but it is not necessary to go into an examination of what the right of market is, because I am of opinion in favour of the deft. on the second question whether deft. has infringed the right of market if it exists. That is a question of fact. It is not easy to lay down what is an infringement; but I think plts. must show that deft. has taken the benefit of the market, or, at least, has deprived the owner of the benefit and profits which he would otherwise have made and derived. The only fact here is, that two people were in the same house together in the town on a market-day, and struck a bargain for the sale and purchase of some corn belonging to a third person. That is the only evidence in the case, and it appears to me not to be evidence to go to the jury of an infringement as to disturbance of the plts.' right of market, whatever the case may have been, if other facts had been shown than those which are shown. am of opinion, therefore, that deft. is entitled to judgment. I will only add, that this case is peculiar in this respect, that instead of leaving it to the deft. to move the court to enter a nonsuit, the special case here puts it on the court to say whether there was evidence or not for the jury. Judgment for the deft. I BRAMWELL, B.-In my opinion the deft. is entitled to have judgment in his favour. As to the law, I must say I cannot see that there is much doubt about it. Where a man has a right of market, and people coming to it are subject to the payment of toll, and the owner has a remedy for the recovery of the toll, if persons come within the limits of the market, and take advantage of the market, and avail themselves of the concourse of people and its other advantages, they must pay the toll; and, if they escape, that would be an infringement of the right of market, and they may be considered as defrauding the market. That is the principle of the decision in Bridgland v. Shapter, in which I fully concur; but is there any evidence of such an infringement here? I think there is not. It is probable that deft.'s son went to Brecon on the market-day meaning to sell the oats, either in or out of the market: in the market, if he could find a good customer; but, (Before ERLE, C. J., POLLOCK, C. B., BRAMWELL if he could not find a better customer in the market, then to sell them out of it; and, if he did sell them out of the market, to a cornchandler in the town, as stated in the case, I hold that to be no disturbance of the market. The sale had no more to do with the Plt.'s attorneys, Messrs. Reece, Williams, and Co. EXCHEQUER CHAMBER. Reported by C. J. B. HERTSLET, Esq., Barrister-at-Law. ERROR FROM THE QUEEN'S BENCH. CHANNELL and WILDE, BB., and KEATING, J.) GREAT INDIAN PENINSULA RAILWAY COMPANY v. Ex. CH] GREAT INDIAN PENINSULA RAILWAY COMPANY v. SAUNDERS. [Ex. On Plts. shipped at London for Bombay 480 tons of iron | defence, safeguard and recovery of the said goods, rails, "freight to be paid here ship lost or not lost." or any part thereof, without prejudice to this insura The freight was paid, and by a policy of insurance to the charges whereof the assurers will contribute ed the rails were insured "valued at 4500l., warranted one according to the rate and quantity of his ex free from particular average unless the ship be herein assured." The deft. duly subscribed the pr stranded, sunk, or burnt." The ship was (by perils for the sum of 150l. The sum of 45001. mentionel insured against) compelled to put back into Plymouth the policy as the value of the rails included their in such a state as not to be worth repairing. The cost, and also the freight as well as the insuranə zi rails were landed and were sent by the plts. to shipping charges. London, and thence in other vessels to Bombay at an extra expense for freight of 8251.: Held (affirming the decision of the court below), that this extra freight was particular average, and therefore within the warranty, and could not be recovered against the underwriters: That the plts. could not recover this sum under a clause in the policy authorising the assured to sue and labour for the preservation of the goods insured, because that clause must be construed with reference to the peril insured against, and there was no such peril. The expenses that can be recovered under the labour clause are expenses incurred to save an impending loss, and to prevent an impending loss within the policy. Case stated after writ without pleadings. In Nov. 1858 the plts. shipped at London, on board the Bombay, bound for Kurrachee and Bombay, with leave to call at Cork for troops, about 480 tons of iron rails, to be conveyed to Bombay for the pits., upon the terms of the following bill of lading : "Shipped in good order and well-conditioned by the Great Indian Peninsula Railway Company, in and upon the good ship called the Bombay, whereof is master for the present voyage Thomas Hamanck, and now riding at anchor in the river Thames and bound for Bombay, with liberty to land passengers at Kurrachee, 1995 bars railway iron, being marked and numbered as in the margin, and are to be delivered in the like good order and well-conditioned at the aforesaid port of Bombay (the act of God, the Queen's enemies, fire, and all and every other danger and accidents of the seas, rivers and navigation, of whatever nature and kind soever, excepted, save risk of boats as far as ships are liable thereto) unto the secretary of the said company, or to his assigns; freight for the said goods to be paid here, ship lost or not, with primage and average accustomed." On the 2nd Nov. 1858 the plts. paid to the owners of the Bombay the sum of 6297. 9s. 10d. for freight on the rails mentioned in the bill of lading, being at the rate of 25s. per ton. On the 11th Nov. 1858 the plts. effected a policy of insurance at Lloyd's for the sum of 4500l. on rails valued thereat, "warranted free from particular average, unless the ship should be stranded, sunk, or burnt, general average payable according to foreign statement." A copy of this policy accompanied and formed part of this case. The following are the material parts:-It was on the ship Bombay, from London to Kurrachee (and) or Bombay, the adventure to begin as to the goods from the lading, and to endure until the ship be "arrived at as above," and upon the goods "until the same be there discharged and safely landed." As far as concerns the assured, the ship, &c., and goods shall be valued at 4500l., on rails valued thereat, warranted free from particular average, unless the ship be stranded, sunk, or burnt, general average payable according to foreign statement. The perils insured against were (inter alia) of the seas, and, after recounting the perils generally insured against," and of all other perils, losses and misfortunes that have or shall come to the hurt or damage of the said goods," &c. And in case of any loss or misfortune, it shall be lawful to the assured, their factors, servants and assigns, to sue, labour and travail for, in and about the Soon after the Bombay sailed she experience! heavy gales, had all her masts carried away by pests, became entirely disabled, and was even towed into Plymouth, on the 5th Dec. 1858, bị b Majesty's ship Argus. On her being surveyed i ascertained the expense of repairing her would exe her value when repaired, and thereupon note abandonment of the voyage was given to the ship by the shipowners, and she was shortly aftersa broken up, the expense of repairing her being a pense which po reasonable person would have incum The iron rails which the plt. had shipped in Bombay were, without delay, taken out of the Bea by the plts., and by them shipped to London. n. there shipped by the plts. on board three other vest. called the Cospatrick, Lancashire Witch and Peter At the time of such shipment on board the time other vessels the rates of freight had risen, and plts. were compelled to pay freights at the rate of s per ton on the rails shipped in the Cospatrick, and 40s. per ton on those shipped in the other two vesse such freights amounting in the whole to 825/. 11 The three vessels into which the rails were arrived in due course at Bombay with the rais board in safety. Application had been made by the plts. to the le writers on the policy to pay the sum of 8254 112 but the underwriters denied that, under the term the policy, they were liable to pay any part. The question for the opinion of the court w whether the deft, as one of the underwriters, was la to pay to the plts. his proportion of the above sum 8251. 118. 7d. or any part thereof. The court below, on the argument of the above ca took time to consider their judgment, and ultimat gave their decision in favour of the deft. Against a decision plt. now brought his writ of error. Edward James, Q. C. (Turner with him) for t plts. below. The plts. are entitled to recover the fal paid for freight. The court below, in their judge have not given effect to the whole charter-party d facts as disclosed in the case: they say there was no V loss; but this was an average loss, and as the undertook to be answerable in case of total loss, the gave judgment for the deft. But although this w not a total loss, a reasonable construction must be upon the whole document and surrounding facts the plt. may recover under the labour clause; the ef and meaning of that clause has never yet been di cided. It is this: the underwriter undertakes to 2. liable in case of total loss, but not liable in of goods damnified; but if any necessary expe is incurred in bringing the goods to port, be takes also to pay that. By the custom at Lloyd's expenses of landing, warehousing and drying always been excluded; yet it has been custom adjusting, to make the underwriter responsible for L expenses. [WILDE, B.-If this transhipment not taken place, would this loss have fallen underwriters ? POLLOCK, C.B.-Are we to coast the contract differently because the freight was beforehand ? The general freight is not a until the voyage is finished.] It is not cl as freight, it is an expense incurred in ca ing goods for the benefit of the underwriters. the rails were at a port from whence they could out be sent on, they might be abandoned, but by duẳng lẽ Ex. Cu.] GREAT INDIAN PENINSULA RAILWAY COMPANY U. SAUNDERS. a [Ex. CH. been done here, they would be saved for the benefit | 2nd ed. s. 1, par. 358.) In practice it is usual if the underwriters. [POLLOCK, C. B.-In Anderson average is taken to carry all the expense to goods, but Wallis, 3 Camp. 440; 2 M. & S. 240, goods were notwithstanding that it is not "particular average ared at and from London to Quebec, warranted free it ought to have been charged to the underwriters under particular average, and the ship was driven back the labour clause: (Emergiron, s. 39, c. 12; Arnould, n the banks of Newfoundland and obliged to put 875, ch. 3, s. 1, par. 322, art 3, par. 324; Thompson v. Kinsale, where it was impossible to repair her so Royal Exchange Insurance Company, 16 East, 214; to enable her to complete the voyage the same Duff v. Mackenzie, 26 L. J. 313, C. P.) [WILLIAMS, on, and the goods, which, though not of a perish- J.-In that case, p. 316, with reference to "the nature, were to a certain extent damaged, could master's effects," it is said, "Although it is stipulated be forwarded the same season by any other con- by the warranty that these effects shall be free of all ance; and Lord Ellenborough and the rest of the average, or, in other words, that the insurance shall not ges composing the court agreed that the assured be liable for any amount of sea damage to them short not a right to abandon, and that the loss not being of a total loss, we think, looking at the nature of the l, the assured had no right to recover. The con- subject of insurance and the terms of this exemption, et is, "I want my goods at Bombay; but if the it is doing no violence to the language used to hold o is lost in a place where there is no means of con- that he is not to be exempted from liability for a total ing the carrying, then they may be abandoned." loss of any of the articles of which the effects' consist." pose, by great efforts, the captain had got another WILDE, B.-That case was argued after the Ex. Ch. , and so the goods were enabled to be delivered had decided that there was no such thing as the total Bombay, it would be unjust in such a case to loss of a part. (b)] We are entitled to expenses such that the money so paid should not be as landing, warehousing and drying. They do not arge on the underwriters when the goods have come under particular average; they must be paid for en saved from a constructive total loss: the with reference to the memorandum: (Blackett v. Royal culty arises from the word "average."] The Exchange Insurance Company, 2 Cr. & J. 251; Livie rt will put such a construction on the docu- v. Janson, 12 East, 648, 635.) [WILDE, B.-Is the nt as will give effect to the whole instrument, and underwriter ever liable for more than the sum assured?] interpretation of the expressions used must be Yes: (Arnould, par. 418; Le Cheminant v. Pearson, en most strongly against the underwriter, he being 4 Taunt. 367; Powell v. Gudgeon, 5 M. & S. 431.) party using them: (Wilson v. Smith, 3 Burr. 1535; If there were no labour clause in the policy I admit plt. Arnould on Ins. 1126; Barker v. Blakes, 9 East, 283.) could not recover. A captain may send on goods e expense here incurred is not particular average. though he is not bound to do so, and may charge addieneral average is a loss to be distributed between the tional freight: (Shipton v. Thornton, 9 A. & E. 335 ; ip, the freight and the goods. Then, they say, this Rosetto v. Gurney, 11 C. B. 189.) [POLLOCK, C.B.— ss falls only on one, and is therefore called a par- Shipton v. Thornton does not warrant your statement; cular average; but that is not so, it is a partial loss. he cannot charge more than his own freight; the diffiBurnett v. Kensington, 7 T. R. 225, Lawrence, J. culty of your position is that you have to make out ys: "Now, considering how extremely inaccurately labour is freight.] It is not freight, it is expense. policy of insurance is penned, I think that too great [WILDE, B.-Suppose a ship is stopped by accident ress ought not to be laid on the precise words and expenses are incurred to send on the goods by sed in it." In construing the expression " particular another, who is liable for the extra expenses, the undererage" in tlle court below, Arnould on Ins. 970, writer of the freight?] No, the underwriters of the rt 3, c. 5, is referred to, where the definition is stated goods: (Mumford v. Commercial Insurance Company, 5 be "loss arising from damage accidentally and John. Rep. N. S. 262.) That case is not distinguishable roximately caused by the perils insured against, or in principle from the present. There goods were insured Com extraordinary expenditures necessarily incurred and captured on the voyage, and were afterwards or the sole benefit of some particular interest, as of the restored, and the owner was compelled by the detention hip alone, or the cargo alone ;" but the latter expres- to send them on by another ship, and it was held that ion of the learned author is wrong. In Benecke on the insurer was liable to pay this extra freight. Pr. of Indem. 472, edit. of 1824, it is said: "The erm particular average, as understood at Lloyd's, does ot comprise the particular charges or the expenses ncurred for saving or preserving the cargo or freight, such as warehouse rent in an intermediate port, which is considered a particular charge on the cargo, and expenses of reloading, which is made a particular charge on the freight. Hence it is clear that they cannot be added to the particular average for the purpose of ascertaining whether this amounts to 51. or 31. per cent., and that the underwriter is not liable unless the particular average by itself amounts to the stipulated percentage." [WILDE, B.You say that if goods are damaged to the extent of 207. per cent. you could not recover, but that if money is laid out in drying, &c. to render the loss as light as possible, the amount so laid out may be recovered. POLLOCK, C. B.-That seems to insurance law.] me contrary to Feb. 8. (a) Edward James, Q.C. continued his argument. The meaning of the expression "average" is equivocal. The effect of the judgment of the Q. B. is, that it is always used in one sense; it is there treated as always being used in respect to total loss: (Arnould on Insurance, 970, (a) Bramwell, B. was absent. Honyman and W. Williams, contra, were not called on. ERLE, C. J.-I am of opinion that the judgment of the court below ought to be affirmed. This was an insurance on goods warranted free from particular average, and the insurance therefore was in effect warranted against total loss and total loss only. The facts are, that carriage had been prepaid to the extent of 6001.; the ship sailed, and being damaged was towed into Plymouth, and the ship became constructively totally lost, but the cargo was landed and delivered over to the owner, the plt., and taken to by the owner in a perfectly undamaged state. As far as the statement of this case is concerned, the goods are restored to the owner undamaged in any way by the sea; the owner, therefore, being in possession of them, placed them on board other ships, and sent them to their destination. He had paid 6007. originally, and he had to pay 8001. for the second voyage, and had claimed under this policy from the insurers either the 8007. or the 2001. extra freight that he so paid. I am of opinion that he is not entitled to recover-certainly he is not entitled to recover for a total loss of the goods, because upon the statement that I have made the goods were restored to him in specie and forwarded by him to their destination, and he actually had their full value at (b) See Janson v. Ralli, 25 L. J. 300, Q.B. Ex. Cu.] REG. . CHARLES SMITH. [C. CAS. R. CROWN CASES RESERVED. Saturday, May 3. (Before ERLE, C.J., MARTIN and CHANNELL, BB, and BLACKBURN and KEATING, JJ.) REG. v. CHARLES SMITH. Forgery-Friendly society-Member—Banker's book-Entries of receipt of money. pass The prisoner was the treasurer, and also a member of an unenrolled friendly society, and it was his duty to pay moneys received into the society's bankers. The prisoner produced to the society a fictitious book, purporting to be the bank pass-book, containing entries purporting to rouch that he paid certais moneys into the bank, and that the bank ackno ledged the receipt of them, which book did not truly represent the state of account. The prisoner haring at various times drawn out moneys which he had appropriated for his own purpose, the jury found the prisoner guilty of presenting a false account with intent to obtain credit for having paid the moneys into the bank with a view to obtain other moneys from the society which he might fraudulently appropriate to his own use: Held, that the prisoner, though a member of the society, might properly be convicted of uttering a forged receipt with intent, &c. Case reserved for the opinion of this Court by Mellor, J. : The prisoner was tried before me at the York assizes, for forgery of a banker's pass-book. The indictment contained twelve counts. The abstract annexed. their destination, so far as the sea damage to the POLLOCK, C. B., CHANNELL, B., KEATING, J., and The prisoner was the treasurer of a friendly society, called the Society of the Golden Fleece. It was not enrolled and was a mere voluntary society. The society met on the first Saturday evening in every month. It was the prisoner's duty to receive the contributions of the members of the society and to advance money to the relieving officers for the sick members, and to pay in the meantime into the West Riding Union Bank the moneys which he had received at the meeting of the society in his own name for the benefit of the society. to the society that the sum of 207. had been paid to the said West Riding Union Bank, and the book so produced was looked at and examined by the members of the society then present. At subsequent meetings of the society the several sums of 407, 157., 40l. and 30%. were paid to him for the like purpose, and the said book, purporting to be the banker's pass-book, was produced by the prisoner and shown to the members of the society at meetings of the society, to vouch the payments of the said several sums into the bank. The prisoner continued to be the treasurer of the society until the last day of Ang. 1861, and at that time the said book, purporting to be the said pass-book, represented the account at the banker's as follows: Mr. Charles Smith, Shepley, in account with the West Riding Union Banking Company: Dr. 1859, Feb. 22. £ s. d. 2 15 0 1857. Aug. 24, Cash 1859. Cr. 2000 40.00 1500 4000 30.00 Upon a new treasurer being elected, an investigation tok place, and it then appeared that the book which the prisoner had from time to time produced as the pass-book of the said banking company for the parpose of vouching the payments of the said several sums into the bank was fictitious, and did not truly represent the state of the account, but had been written by the prisoner's desire by a person named David Sinith, who was his cousin, whereas the genuine passbook kept between the prisoner and the banking company stated the account as follows: Mr. Charles Smith, Shepley, in account with the West Riding Union Banking Company : Cr. £81 7 4 [C. CAS. R. Second count. With uttering the said forged writing Third count. Did forge a certain writing purporting Fourth count.-Did utter a forged pass-book, with Fifth count. Did forge a certain other writing, purporting to be the pass-book between the West Riding Union Banking Company, at Huddersfield, and the said Charles Sinith, with intent to defraud. Sixth count. Did utter a forged pass-book between the West Riding Union Banking Company, at Huddersfield, and the said Charles Smith, with intent to defraud. Seventh count.-Did forge a certain other writing, purporting to be a bank pass-book, with intent to 20 21 defraud. 1859. 60 13 1 Feb 22, Cash... 20 0 0 June 30, Interest 0 14 3 £81 7 4 It further appeared that the above account truly presented all the sums which the prisoner had paid into the said bank, but that the actual balance in the bank when the new treasurer was elected was 31. 11d. and no more, the account having been reduced to that sum by the prisoner drawing out at various times sums of money which he had appropriated for his own purposes. It was objected on the part of the prisoner that this was a mere voluntary association, that the prisoner was interested in the moneys, and that inasmuch as the book which he presented stated the sums which he had received, the mere misrepresentation of the true state of the account between him and the bank was no offence. I declined to stop the case, but told the jury that if they were of opinion that the prisoner presented a false account to the members at the meeting of the society with intent thereby to obtain credit for having daly paid into the bank the various sums which he had received and to be continued in his office of treasurer, with a view to obtain other moneys from the society which he might fraudulently appropriate to his own use, to find him guilty. The Jury found him guilty, and I postponed the judgment, and discharged the prisoner upon recognisance to appear when called upon. I request the opinion of the Court of Criminal Appeal whether the prisoner was rightly convicted. Indictment. JOHN MELLOR. Eighth count.-Did utter a forged pass-book, with intent, &c. First count.-That Charles Smith, on the 5th March 1859, did forge and counterfeit a certain writing in the words and figures following: Mr. Charles Smith, Shepley, in account with the Dr. 1859. Feb. 22, Interest £ s. d. up to that time 2 15 0 with intent to defraud. 1857. Cr. £ s. d. Nov. 18, Cash... 20 0 0 Ninth count.-Did, on the 4th Sept. 1858, utter a forged bank pass-book, with intent, &c. Tenth count.-Did, on the 1st Jan. 1859, utter v Eleventh count.-Did, on the 5th March 1859, ERLE, C.J., MARTIN and CHANNELL, BB., Forgery-Savings bank book-Entries. Held, that both objections were untenable, and that Case reserved for the opinion of this Court at the The prisoner was tried at the last assizes for the The first count of the indictment charged that the 30 0 0 prisoner feloniously forged a certain writing, in the words and figures following: |